Book 6 The law of obligations
Title 6.1 Obligations*) in general
*) An 'obligation' is a specific legal
relationship between in principle two persons, the creditor on the
one hand and the debtor on the other, that is created either by agreement
(contract) or by operation of law, in the latter case as soon as an
event occurs which makes it desirable to standards of social opinion,
as captured in law, that one person obtains a right to a performance
which has to be carried out by another person (tortious act, benevolent
intervention in another's affairs, undue performance, unjustified
Irrespective of the source from which the obligation arises (contract,
tort, undue performance etc), its content is legally always shaped
in the same form. The debtor has to perform something to or on behalf
of the creditor. This part of the obligation is called a 'debt'
of the debtor. The creditor is within the obligation (i.e. within
this particular legal relationship with his debtor) entitled to that
performance and he may, if necessary, ask the court and the police
for assistance in order to get that performance from his debtor or
to obtain at least a similar compensation in money. That part of the
obligation is called a 'debt-claim', which belongs - as an
intangible asset - to the creditor, where it forms a part of his property,
just like, for instance, his right of ownership in a house.
Depending on the content of the obligation, now in regard to what
must actually be done by the debtor to satisfy his debt, any performance,
and not just the payment of money, can be the object of the creditor's
debt-claim. So, the right in personam against a debtor to claim the
transfer of a house or to demand the performance of a certain service,
is named a 'debt-claim', just as the right to claim the payment of
a specific amount of money is. The word 'debt' is placed before the
word 'claim' to distinguish a debt-claim from other types of claims, like the
claim of spouses towards each other to actually live together and
to be faithful to each other or a legal claim (right of action) that
can be brought to court. The law of obligations specifies what the
debtor and creditor may expect from each other within their specific
legal relatoinship (obligation) and what they are able to do when the other one
does not comply with these expectations.
Section 6.1.1 General provisions
Article 6:1 The arising of obligations
Obligations can only come to existence (arise) if this results from law.
Article 6:2 Reasonableness and fairness within the
relationship between the creditor and debtor
- 1. The creditor
and debtor must behave themselves towards each other in accordance with
the standards of reasonableness and fairness.
- 2. A rule in force
between a creditor and his debtor by virtue of law, common practice or
a juridical act does not apply as far as this would be unacceptable, in
the circumstances, by standards of reasonableness and fairness.
Article 6:3 Natural obligation
- 1. A natural obligation
is a legally not enforceable obligation.
- 2. A natural obligation
a. when the law or a juridical act denies its
b. when someone has a pressing moral duty of
such nature towards another person that compliance with it, although legally
not enforceable, has to be regarded by social standards (common opinion)
as the fulfilment of a performance to which this other person is entitled.
Article 6:4 Applicability of the law of obligations
The rules of law for obligations apply accordingly to natural obligations,
unless the law or the necessary implication of a statutory provision bring
along that a provision cannot be applied to a non-enforceable obligation.
Article 6:5 Conversion of a natural obligation into
an enforceable obligation
- 1. A natural obligation
is converted into an enforceable obligation by means of an agreement for
this purpose between the debtor and the creditor.
- 2. An offer of the debtor, addressed to the
creditor, to enter into such an agreement gratuitously, is considered
to be accepted when the offer has come to the knowledge of the creditor
and he has not rejected it without delay.
- 3. The statutory
provisions for donations and gifts do not apply to an agreement as meant
in the present Article.
Section 6.1.2 Plurality of debtors
and joint and several liability
Article 6:6 Separate liability or joint and several
- 1. If a performance is indebted by two or
more debtors jointly, then each of them is liable for an equal part, unless
from law, common practice or a juridical act results that they are liable
for unequal parts or that they are joint and several liable.
- 2. If the performance is undividable or if
from law, common practice or a juridical act results that the debtors
each are liable for the whole debt, then they are joint and several liable
[it then is a so called ‘joint debt’ or 'joint obligation'
of ‘solidary debtors’].
- 3. From an agreement
between the debtor and creditor may result that, when the obligation passes
(moves) to two or more legal successors of the debtor, these successors
are liable for unequal parts or that they are joint and several liable.
Article 6:7 Liability of solidary debtors
- 1. If two or more debtors are joint and several
liable for an obligation [it then is called a ‘joint debt’
or ‘joint obligation’ of ‘solidary debtors’],
then the creditor is towards each of them entitled to demand full performance
of the entire obligation.
- 2. A settlement of the joint obligation by
one of the solidary debtors discharges also the other solidary debtors
against the creditor. The same applies when the joint obligation is performed
by means of a setoff or the acceptance of a new debt by one of the solidary
debtors under an agreement with the creditor, as well as when the court,
upon a request of one of the solidary debtors, applies Article 6:60, unless
the court has ruled differently in that case.
Article 6:8 Reasonableness and fairness within the
internal relationship between the solidary debtors
Article 6:2 applies accordingly to the legal relationship between the
solidary debtors internally (mutually).
Article 6:9 Waiver of the debt-claim by the creditor
and granting an extension of payment
- 1. Every solidary debtor may accept on behalf
of the other solidary debtors an offer of the creditor to waiver his debt-claim
gratuitously, insofar this offer also concerns the liability of the other
- 2. An extension (deferment) of payment, granted
by the creditor to one of the solidary debtors, applies as well on behalf
of the other solidary debtors, as far as this appears to be the intention
of the creditor.
Article 6:10 Internal contribution in the performed
- 1. Every solidary debtor must, for the part
of the joint obligation for which he is accountable in his internal relationship
with the other solidary debtors, contribute in the performed joint obligation
and in the costs made to perform it in accordance with the following paragraphs.
- 2. To the extent that a solidary debtor has
performed more to the creditor of the joint obligation than the part for
which he is accountable in his internal relationship with the other solidary
debtors, he may claim from the other solidary debtors the payment of their
internal contribution; each of the other solidary debtors shall have to
perform to him the part of the performed joint obligation for which they
are accountable in their internal relationship with each other.
- 3. Every solidary debtor must, in accordance
with the part for which he is accountable in his internal relationship
with the other solidary debtors, contribute in the costs, made in reason
by one of the solidary debtors, unless these costs only concern that debtor
Article 6:11 Means of defence.
- 1. A solidary debtor who is asked by one
of the other solidary debtors to pay his internal contribution as defined
in the previous Article, may invoke against that other debtor all means
of defence which he could have put forward against the creditor at the
moment that his internal debt to contribute in the joint obligation or
the costs came to existence.
- 2. Nevertheless, he cannot invoke such a
defence against the other solidary debtor if this defence results from
a juridical act between him and the creditor performed at a moment on
which the joint obligation of the solidary debtors to that creditor already
had come to existence.
- 3. An appeal to the fact that the creditor’s
right of action has become prescribed, may only be invoked by a solidary
debtor who has been asked by another solidary debtor to pay his internal
contribution when, at the moment on which his internal debt to contribute
came to existence, both, he and the debtor who asked him to pay his contribution,
could have invoked that prescription against the creditor.
- 4. The previous
paragraphs apply only as far as the internal relationship between the
solidary debtors does not imply differently.
Article 6:12 Subrogation
- 1. When the joint obligation is performed
by one of the solidary debtors for more than the part for which he is
accountable in his internal relationship with the other solidary debtors,
then the rights of the creditor against the other solidary debtors and
against third parties pass (move) to the performing debtor by virtue of
subrogation as far as he has performed more than his part of the joint
obligation, each time only up to the part that concerns the other solidary
debtor or the third party in his internal relationship to the performing
- 2. If the joint obligation to the creditor
included another performance than the payment of money, then the debt-claim
against the other solidary debtors or third parties, acquired by the performing
debtor from the creditor by subrogation, will be converted into a money
debt-claim of equal value.
Article 6:13 Insolvency of a solidary debtor
- 1. If the recovery of the internal contribution
(Article 6:10) or of the subrogated debt-claim (Article 6:12) from one
of the solidary debtors proves to be entirely or partially impossible,
then the irrecoverable part will be imputed to all other solidary debtors
in proportion to the part of the joint obligation for which each of them
is accountable in his internal relationship with the other solidary debtors.
- 2. When a solidary debtor has performed the
joint obligation partially or entirely, although he was not accountable
for it at all in his internal relationship with the other solidary debtors,
and it proves that he cannot recover his performance from the solidary
debtors who are internally accountable for that debt, then the irrevocable
part is imputed to all solidary debtors who neither are not accountable
for the joint obligation in their internal relationship with the other
solidary debtors, and this in proportion to the amount for which each
of them was liable towards the creditor at the time of performance of
the joint debt.
- 3. Every person who is involved in an imputation
as meant in paragraph 1 or 2 of the present Article, remains entitled
to recover his added contribution from the persons who were unable to
pay their internal contribution.
Article 6:14 Effect within the internal relationship
between the solidary debtors of a waiver of rights by the creditor
A waiver of rights by the creditor on behalf of one of the solidary debtors
does not release this debtor towards the other solidary debtors from his
internal debt to contribute in the joint obligation and costs. The creditor
may, however, release a solidary debtor towards another solidary debtor
from this internal obligation by committing himself towards this other
solidary debtor to reduce his debt-claim against him with the amount that
this other solidary debtor could have demanded as an internal contribution
from the debtor on whose behalf the creditor has waived his rights.
Section 6.1.3 Plurality of creditors
Article 6:15 Separate debt-claims or one joint debt-claim
- 1. When a performance is indebted to two
or more creditors, then each of them has, for an equal share, his own
debt-claim against the debtor, unless from law, common practice or a juridical
act results that the performance is due to them for unequal shares or
that they jointly have one debt-claim against the debtor.
- 2. If the performance is undividable or if
the debt-claim on that performance falls into a community of property,
then the involved creditors will jointly have one debt-claim.
- 3. It is not possible to invoke against the
debtor that the debt-claim falls into a community of property when that
debt-claim results from an agreement between the debtor and the creditors
and the debtor did not know nor needed to know that this debt-claim would
become a part of a community of property between those creditors.
Article 6:16 Applicability of the statutory provisions
for a community of property
When it is agreed with the debtor that two or more persons are entitled
to demand, as creditor, the entire performance from him, in the sense
that a performance to one of these creditors also releases the debtor
from his obligation towards the other, although this performance does
not belong to those creditors jointly in their mutual relationship, then
the statutory provisions for a community of property will apply accordingly
to the relation of the creditors with their debtor.
Section 6.1.4 Alternative obligations
Article 6:17 Alternative debt-claims and the right
- 1. An obligation is alternative, when the
debtor is obliged to fulfil one of two or more different performances
and the debtor himself, the creditor or a third party has the option to
choose one of these performances as the one to be performed.
- 2. The right of choice belongs to the debtor,
unless something else results from law, common practice or a juridical
Article 6:18 The effect of a choice made
As soon as the competent person has made his choice, the alternative obligation
becomes a normal obligation which obliges the debtor to perform the chosen
Article 6:19 Passage of the right to choose
- 1. When the right to choose belongs to one
of the parties to the alternative obligation, this right will pass (move)
to the other party when he has set a reasonable fixed period in which
the choice for one of the alternative performances has to be made by the
competent party and this choice is not made within that period.
- 2. The right to choose, however, does not
pass (move) to the creditor before he has the right to demand performance,
nor to the debtor before he has the right to perform.
- 3. If the alternative debt-claim is burdened
with a pledge or seized and an already started foreclosure (sale under
execution) cannot be continued because no choice has been made, then the
pledgee or seizer may set a reasonable fixed period to both parties, the
debtor and the creditor of the alternative obligation, to make a choice
in conformity with their mutual legal relationship. When the choice is
still not made within this period by the competent party, then the right
to choose passes (moves) to the pledgee or seizer. In such an event the
pledgee or seizer is not allowed to use his right to choose needlessly.
Article 6:20 Impossibility to perform one of the alternative
- 1. The impossibility to perform one or more
of the alternative performances does not harm the right to choose.
- 2. However, if the right to choose belongs
to the debtor, then he is not allowed to choose for an impossible performance,
unless the impossibility to perform a certain alternative performance
is the result of a cause that is attributable to the creditor or unless
the creditor agrees with such a choice of the debtor.
Section 6.1.5 Conditional obligations
Article 6:21 Definition of a 'conditional obligation'
An obligation is conditional when, as a result of a juridical act, its
effect depends on the fulfilment of an uncertain future event.
Article 6:22 Functioning of a condition precedent
A condition precedent makes that the obligation only takes effect when
the uncertain future event sets in. A condition subsequent makes that
the obligation comes to an end, and thus looses its effect, when the uncertain
future event sets in.
Article 6:23 Deliberate interference with the uncertain
- 1. When a party, for whom it is important
that a condition will not be fulfilled, has prevented the fulfilment of
that condition, then this condition is considered to be fulfilled if required
so by reasonableness and fairness.
- 2. When a party, for whom it is important
that a condition will be fulfilled, has brought about its fulfilment,
then this condition is considered to be unfulfilled if required so by
reasonableness and fairness.
Article 6:24 Undoing of a performance after the fulfilment
of a condition subsequent
- 1. After the fulfilment of a condition subsequent,
the creditor must undo the performances which he already had received
on the basis of the conditional obligation, unless something else results
from the content or the necessary implications of the juridical act through
which the obligation has been made conditional.
- 2. Where the obligation of the creditor to
undo the already received performance necessarily implies the return of
an asset, then the natural and civil fruits (benefits) that have become
separated or due and demandable after the fulfilment of the condition,
will belong to the debtor of the conditional obligation; in that event
Articles 3:120 up to and including 3:124 of the Civil Code shall apply
accordingly with regard to what is stipulated in these provisions about
a compensation for costs and damage, as far as those costs and that damage
have arisen after the fulfilment of the condition subsequent.
Article 6:25 Performance made before the fulfilment
of a condition precedent
Where an obligation under a condition precedent has been performed even
before the fulfilment of that condition, the debtor may demand, as long
as this condition is not fulfilled, that this performance is made undone
in accordance with Section 6.4.2 of the Civil Code.
Article 6:26 Applicability of the statutory provisions
for unconditional (normal) obligations to conditional obligations
The statutory provisions for unconditional (normal) obligations apply
to a conditional obligation to the extent that the conditional character
of that obligation does not imply differently.
Section 6.1.6 Performance of an
Article 6:27 General duty of care
A person who has to deliver (supply) an individually specified thing is
obliged, up until its delivery, to look after it in the way as a prudent
debtor would in the given circumstances.
Article 6:28 Delivery of fungible goods
If the indebted thing is only determined to its type, while there are
different qualities of that type available, then the thing that is to
be delivered by the debtor may not be less than of average quality.
Article 6:29 No performance in parts or instalments
Without approval of the creditor, the debtor is not allowed to perform
the indebted performance in separate parts or instalments.
Article 6:30 Performance performed by a third party
- 1. The performance which the debtor has to
perform in order to comply with his obligation may be performed by another
person than the debtor himself, unless the content or necessary implications
of the obligation imply differently.
- 2. The creditor does not default (is not
in creditor's default) if he refuses, with the approval of the debtor,
a performance of a third party.
Article 6:31 Performance to a creditor who misses
the (full) legal capacity to perform juridical acts
A performance to a creditor who misses the (full) legal capacity to perform
juridical acts, releases the debtor only from his obligation as far as
his performance really has been beneficial to the creditor or it has come
under control of this creditor’s legal representative.
Article 6:32 Performance to another person than the
one who is authorized to receive it
A performance to another person than the creditor or to another person
than someone who's authorised to receive it besides or instead of the
creditor, releases the debtor from his obligation insofar the one to whom
he had to perform has ratified the performance as valid (confirmed its
validity) or as far as he has been availed (benefited) by it.
Article 6:33 Creditor without authorisation to receive
A performance that has been performed to the creditor in spite of a seizure
or during a period in which the creditor was not authorized to receive
the performance himself because of a limited property right, a (fiduciary)
administration of property of a legal representative or a similar hindrance,
so that the debtor has to perform again to the recipient who is authorised
to receive it, can be recovered from the creditor.
Article 6:34 Performing in good faith
- 1. The debtor who has performed to someone
who was legally not authorized to receive the performance, may invoke
against the person to whom the performance had to be carried out that
he is released from his obligation if he reasonably cloud have assumed
that the recipient of the performance was entitled to it in the capacity
as creditor or that the performance had to be performed to that recipient
on other grounds.
- 2. If an authorized recipient of a performance
loses his right to demand performance of an obligation, in the sense that
this right after sometime has passed (moved) to another person with retroactive
effect, then the debtor, who at that time already had performed to the
recipient, may invoke against this other person that he is released from
his obligation, unless he reasonably could have expected that the recipient
would lose his right to receive the performance, so that this knowledge
should have prevented him from performing the obligation to the recipient.
Article 6:35 Performance by a third party to a third
- 1. When, in a situation that the obligation
has been performed by a third party, the conditions of one of the paragraphs
of the previous Article are met, then this third party may, on his behalf,
invoke the discharging effect of that performance.
- 2. The debtor may, on his own behalf, invoke
the discharging effect of this performance, provided that, if he would
have performed himself, those conditions would have been met as well with
regard to himself
Article 6:36 Right of recovery
In the situations, meant in the two previous Articles, the person who
in reality was entitled to the performance, may recover his debt-claim
from the person who has received the performance without entitlement.
Article 6:37 Right to withhold performance
The debtor has the right to withhold the performance of his obligation
if he has reasonable grounds to doubt to whom that obligation must be
Article 6:38 Immediate performance
If no time of performance has been stipulated, the debtor may immediately
perform the indebted performance and the creditor may immediately demand
Article 6:39 Time stipulations (expiry date)
- 1. When a time of performance has been stipulated,
it is assumed that this only means that the creditor cannot demand performance
prior the stipulated expiry day (due date).
- 2. A performance which is performed before
the expiry day (due date), is not considered to be an undue performance.
Article 6:40 Expiry of a time stipulation (effective
date or expiry date)
The debtor may no longer invoke a time stipulation (effective date or
a. when he is bankrupt or when he falls under
the Debt Repayment Scheme for natural persons;
b. when he is in default of providing the promised
c. when the provided security for the debt-claim
of the creditor has been reduced because of an event that is attributable
to the debtor, unless the remaining security is still sufficient to guarantee
full performance of the obligation.
Article 6:41 Place of performance
If no place of performance has been stipulated, the delivery of an indebted
thing must emerge:
a. in case of an individually specified thing:
at the place where it was at the moment that the obligation came to existence;
b. in case of a fungible thing: at the place
where the debtor practises his profession or has his company or, if such
a place does not exist, at the place where he has his domicile (residence).
Article 6:42 Delivery by a person without power of
A person who, in the performance of an obligation, has delivered (supplied)
a thing with regard to which he had no power of disposition, may demand
from the creditor that this thing is returned to the one to whom it belongs,
provided that he, at the same time, offers another thing to the creditor
which is in conformity with the obligation and provided that the interests
of the creditor are not harmed by the return of the initially delivered
Article 6:43 Imputation of a performance to two or
- 1. When the debtor has made a performance
that could be imputed to two or more obligations that are indebted to
the same creditor, then it is imputed to the obligation that the debtor
has pointed out when he made the performance.
- 2. In the absence of such an indication,
the performance is imputed to all due and demandable obligations that
cover this type of performance. When there are two or more of such due
and demandable obligations, then the performance is imputed firstly to
the most burdensome obligation and, when there are two or more equally
burdensome obligations, to the oldest obligation. Where these obligations
are equally old, the performance is imputed proportionality.
Article 6:44 Imputation of a performance in money
to two or more obligations
- 1. A performance in money (payment) that
could be imputed to a specific obligation, diminishes firstly the involving
costs, subsequently the accrued interests and finally the principle sum
and running interests.
- 2. The creditor may, without causing a default
as referred to in Section 6.1.8 of the Civil Code, refuse a payment offer
if the debtor points out another order for the imputation of his payment
than the one mentioned in the previous paragraph.
- 3. The creditor may refuse the payment of
the full principal sum if the accrued and running interests and the involving
costs are not paid at the same time.
Article 6:45 Swap over of indebted performances
A debtor is only able with authorisation of the creditor to discharge
himself of his obligation by fulfilling another performance than the indebted
one, even if that other performance has an equal or even higher value.
Article 6:46 Payment by cheque or a documentary collection
- 1. When the creditor accepts a cheque, mail
cheque, transfer order or another paper as payment, it is assumed that
this done with the reserve of good result.
- 2. When the creditor is entitled to withhold
performance of his own obligation until the debtor has made a payment
as meant in paragraph 1, he preserves his right to withhold his performance
until the good result of that payment is ascertained or could have been
ascertained by him.
Article 6:47 Costs of performance
- 1. The costs of performance are chargeable
to the one who complies with the obligation.
- 2. The costs of a written receipt (note of
remittance) are chargeable to the one for and to whom this written proof
of performance is presented.
Article 6:48 Written receipt (note of remittance)
- 1. The creditor is compelled to hand over
a written receipt (note of remittance) for every received performance,
unless agreement, common practice or fairness imply differently.
- 2. If the creditor holds a certificate of
proof which is handed over to him on account of the debtor’s obligation,
then the debtor may, when performing his debt, also demand the return
of this piece of evidence, unless the creditor still has a reasonable
interest in keeping it; in that last situation the creditor must make
a note on it that proves that the debtor is discharged from his obligation.
- 3. The debtor may withhold performance as
long as the creditor does not comply with the provisions of paragraph
Article 6:49 Written proof of discharge regarding
a debt-claim to order or bearer
- 1. Where a debt-claim to order or to bearer
is performed, the debtor may demand that a discharge (note of remittance)
is put on the appropriate document (negotiable paper) and that this document
(negotiable paper) is handed over to him.
- 2. If the performance does not concern the
entire debt-claim or if the creditor also needs the document (negotiable
paper) in order to exercise other rights, then he may keep this document
(negotiable paper), provided that he puts a discharge (note of remittance)
on the document (negotiable paper) itself and, in addition, that he hands
over a written proof of discharge (note of remittance) to the debtor separately.
- 3. The creditor may, however, irrespective
whether he has received the performance in full or in part, suffice with
the handing over a written discharge (note of remittance), provided that,
upon request of his counterparty, he shows that the document (negotiable
paper) has been destroyed or has become useless or provided that he, upon
request of his counterparty, puts forward enough security for a period
of twenty years or for such a shorter period as his counterparty may reasonably
be exposed to a claim on account of the document (negotiable paper).
- 4. The debtor may withhold performance as
long as the creditor does not comply with the provisions of the previous
Article 6:50 Presumption of performance
- 1. When similar performances have to be accomplished
at consecutive times, the written receipts (notes of remittance) for two
consecutive performances produce the legal presumption that also the earlier
performances have been fulfilled.
- 2. If the creditor issues a written receipt
(note of remittance) for the principal sum, then the law presumes that
also the involving interests and costs have been settled.
Article 6:51 Security
- 1. When the law implies that someone has
to provide security or that the provision of security is a necessary condition
for a specific legal effect to set in, then the person who provides security
to this end, has the choice between personal security and real security.
- 2. The offered security must be of such a
kind (nature and volume) that the debt-claim, and if need be, the costs
and interests are covered sufficiently and that the creditor is able to
recover his debt-claim from it effortlessly.
- 3. When the provided security has become
insufficient because of an event that is not attributable to the creditor,
the debtor is obliged to make it sufficient again.
Section 6.1.7 Right to withhold
Article 6:52 General right to withhold performance
- 1. A debtor who himself has a due and demandable
debt-claim against his creditor, has the right to withhold performance
of his obligation to that creditor until his debt-claim is satisfied,
provided that his debt-claim and his obligation are related to each other
in such a way that it is justified to withhold performance.
- 2. Such a relation between the debt-claim
and the obligation exists, among others, when the debt-claim and obligation
both result from the same legal relationship or from regular business
activities between parties.
Article 6:53 Right to withhold performance in relation
to the creditors of the counterparty
The right to withhold performance may be invoked also against the creditors
of the counterparty.
Article 6:54 No right to withhold performance
The debtor, however, has no right to withhold performance:
a. as far as he is in default as referred to
in Section 6.1.8 of the Civil Code with regard to the reception (acceptance)
of the performance that is offered to him by the counterparty;
b. as far as it has become permanently impossible
for the counterparty to comply with his obligation;
c. as far as the law does not allow a seizure
(foreclosure) of the debt-claim of the counterparty.
Article 6:55 Right to withhold performance ceases
to exist when sufficient security is provided
The right of the debtor to withhold performance ceases to exist as soon
as sufficient security has been provided by the creditor or a third party
from which the obligation, indebted by the creditor, might be recovered,
unless the performance of the creditor's obligation would be delayed unreasonably
as a result.
Article 6:56 Right to withhold performance after prescription
of the debtor’s right of action
The right to withhold performance remains in force even after the right
of action against the counterparty has become prescribed.
Article 6:57 Right of retention
If the right to withhold performance meets the requirements for a right
of retention as referred to in Article 3:290 of the Civil Code, then the
provisions of the present Section shall remain applicable to the extent
that the provisions of Section 3.10.4 of the Civil Code do not derogate
from the provisions of the present Section.
Section 6.1.8 Creditor's default
Article 6:58 Creditor himself prevents the performance
of the debtor’s obligation
The creditor defaults (gets in default himself) when the debtor is unable
to perform the obligation because the creditor does not grant the necessary
assistance for this purpose or because of another obstacle on the side
of the creditor, unless the cause of the debtor’s inability to perform
cannot be attributed to the creditor.
Article 6:59 Debtor rightfully withholds performance
The creditor defaults (gets in default himself) as well when he does not
comply with his own obligation towards the debtor because of circumstances
which are attributable to him (the creditor), whereupon the debtor withholds
performance towards the creditor in accordance with the law.
Article 6:60 Discharge of the debtor from the obligation
by the court
When the creditor is in default, the court may, upon the request of the
debtor, discharge the debtor from his obligation, where appropriate, under
supplementary conditions to be set by court.
Article 6:61 Relation between a creditor's default
and a default of the debtor
- 1. A creditor’s default puts an end
to a debtor’s default.
- 2. As long as the creditor is in default,
the debtor cannot become defaulted himself [cannot get in default himself].
Article 6:62 No enforcement measures during the time
that the creditor is in default himself
During the time that the creditor is in default, he is not allowed to
take enforcement measures.
Article 6:63 Compensation for costs
The debtor is, within the limits of reason, entitled to a compensation
for costs related to an offer or to a safekeeping as meant in Articles
6:66 up to and including 6:70 and for costs which in another way result
from the creditor's default.
Article 6:64 Limited liability of the debtor for damage
that occurred during the period that the creditor is in default
If an event occurs during the time that the creditor is in default, which
event makes it entirely or partially impossible for the debtor to perform
the indebted performance in future, then this non-performance is not attributable
to him [the debtor], unless he or his subordinates have blamefully failed
to take care for the performance in a way as could be expected of a debtor
in the given circumstances.
Article 6:65 Selected fungible goods that become damaged
during the period that the creditor is in default
When the debtor has the obligation to deliver (supply) one or more fungible
goods and he has notified the creditor that he [the debtor] has pointed
out (selected) one or more specific fungible goods as the ones to be delivered
(supplied) to the creditor, then he will only be obliged, in the event
of a creditor’s default, to deliver the specific fungible goods
that were pointed out (selected) by him for this purpose. The debtor remains,
however, entitled to deliver (supply) other fungible goods of this type.
Article 6:66 Right to place the money or thing during
a creditor’s default in the safekeeping of a custodian
If the obligation necessarily implicates the payment of money or the delivery
(supply) of a thing, then the debtor has the right, as long as the creditor
is in default, to place the money or the thing on behalf of the creditor
in the safekeeping of a custodian.
Article 6:67 Safekeeping procedure
A deposit for the safekeeping of money occurs by consignment in accordance
with the law; a deposit for the safekeeping of a to be delivered (supplied)
thing occurs by handing over that thing in safe custody to someone whose
profession it is to preserve such kinds of things and who is located at
the place where the indebted thing must be delivered (supplied) to the
creditor. The provisions for a judicial bailment apply to such a safekeeping
as far as Articles 6:68 up to and including 6:71 do not imply differently.
Article 6:68 No interest accruing on money that has
been deposited for safekeeping
Money that has been deposited for safekeeping in accordance with the previous
Article, does not generate any interest at the expense of the debtor.
Article 6:69 Purgation of creditor’s default
- 1. During the deposit for safekeeping the
creditor can only purge his default by accepting the money or the thing
that is placed in the safekeeping of the custodian.
- 2. As long as the creditor has not accepted
the money or the thing that is placed in the safekeeping of a custodian,
the person who has made the deposit is entitled to claim it back from
Article 6:70 Compensation for costs of safekeeping
The custodian is only allowed to give the kept thing to the creditor if
the creditor compensates him for all the costs of safekeeping. After the
kept thing has been handed over to the creditor, the custodian has to
pay out to the person who has placed the thing in his custody (depositor)
what this person already has paid to him for safekeeping the object. When
the kept thing, because of a direct payment of the creditor to the depositor,
is handed over by the custodian to the creditor even before the creditor
has paid all the costs of safekeeping to the custodian, then the debt-claim
of the depositor against the creditor to demand compensation for all these
costs passes (moves) from the depositor to the custodian.
Article 6:71 Prescription of legal actions
The creditor’s right of action against the debtor cannot prescribe
later than his right of action to demand the handing over of the money
or the thing that is in the safekeeping of the custodian.
Article 6:72 Effects of a creditor's default for debtors
who are joint and several liable
Where two or more debtors are joint and several liable towards a creditor
and this creditor defaults (is in default), then the legal effects of
that creditor's default apply to (for) each of these debtors individually.
Article 6:73 Creditor refuses an offer of a third
party to perform the obligation
If the creditor refuses an offer of a third party to perform the obligation
of the debtor, then Articles 6:60, 6:62, 6:63 and 6:66 up to and including
6:70 apply accordingly to that third party, provided that his offer is
in conformity with the debtor’s obligation and he has a justified
interest in performing it himself.