Book 6 The law of obligations
Title 6.2 Passage of debt-claims and debts and waiver of debt-claims
Section 6.2.1 Effects of the passage of a right to a performance (passage
Article 6:142 Passage of a debt-claim includes
passage of accessory and supporting rights
- 1. When debt-claim (right to a performance)
passes to a new creditor, this new creditor will not only acquire the
primary right to the performance but also all accessory rights attached
to it, such as rights derived from a mortgage or pledge or a surety [all
established as security for the passed debt-claim], privileges and the power
to enforce an existing executorial title with regard to the debt-claim or its
- 2. The accessory rights include the rights (entitlements) of the former
creditor to contractual interest, a contractual penalty or a periodic
penalty payment imposed by the court, except as far as the interest was
already due and demandable or the contractual penalty or periodical penalty
payment was already forfeited at the moment on which the debt-claim passed
to the new creditor.
Article 6:143 Evidence supporting the passed debt-claim
and its accessory rights
- 1. When a debt-claim passes to a new creditor, the former creditor
must hand over to the new creditor all evidence in support of the debt-claim
and its accessory rights. Where the former creditor still has an interest
in such supporting documents himself, he only has to hand over a duplicate
(copy) or extract of these documents if the new creditor asks him to do
so and the new creditor is prepared to bear the involved costs; this duplicate
(copy) or extract must have a similar evidential value as the original
- 2. The former creditor also has to hand over executorial titles as meant
in the previous Article; where the former creditor still has an interest
in these legal documents himself, he must give the new creditor the opportunity
to use them to proceed to the enforcement to which he is entitled.
- 3. In the event that the entire debt-claim has passed to a new
creditor, the former creditor must hand over to the new creditor all assets
which he holds as collateral (security) for that debt-claim.
- 4. In the event that the passed debt-claim is secured by a mortgage,
the former creditor must, upon request, cooperate with the new creditor
in order to establish that the passage of the debt-claim shows from the public
registers for registered property.
Article 6:144 Former creditor vouches for the new
creditor with regard to duties imposed on him
- 1. Where the transfer (assignment) of a debt-claim brings along
that also one or more legal duties, resulting from the quality of being
a creditor or from accessory rights, shall pass to (shall become imposed
on) the new creditor, the transfer (assignments) takes place under the
guarantee of the former creditor towards the debtor that the new creditor
will comply with these duties.
- 2. Paragraph 1 does not apply to a transfer of a debt-claim to order or to
bearer in accordance with Article 3:93 of the Civil Code.
Article 6:145 Means of defence of the debtor
When a debt-claim passes to a new creditor, this has no effect
for the means of defence that are available to the debtor.
Article 6:146 Means of defence when a debt-claim to order
or to bearer is transferred
- 1. After a debt-claim to order or to bearer has been transferred in accordance
with Article 3:93 of the Civil Code, the debtor cannot raise a defence
against the new creditor or his legal successors as far as this defence
is based on the debtor’s legal relationship with the former creditor,
unless the new creditor was aware of that defence at the moment of the
transfer or he ought to have been have been aware of it at that moment
in view of the information placed on the negotiable document itself.
- 2. Nevertheless, an appeal to legal incapacity or a lack of authorization
(to perform juridical acts) can be raised effectively against a new creditor
who was not aware of this legal defect if, at the time of the transfer,
this defect could have been known from a registration in a public register
instituted under law with the purpose to enable people to obtain knowledge
of facts on which such legal incapacity or lack of authorisation is based.
Article 6:147 Forged negotiable document
In case of a transfer of a negotiable document to bearer or to order,
the person who is defined in that document as debtor and who can be held
accountable for the fact that this document has been put into circulation
against his will or that his signature or the document itself is forged,
loses his right to invoke this legal defect against a person who has acquired
this document in good faith as well as against the legal successors of
Article 6:148 Limited property rights established
on a debt-claim to bearer or to order
Articles 6:146 and 6:147 apply accordingly in the event that a limited
property right has been established on a debt-claim to bearer or to order.
Article 149 Nullification or rescission by the debtor
- 1. Where the debtor, after the
debt-claim has passed to a new creditor under particular title, exercises in
his relation to the original creditor his right to nullify or rescind
the juridical act from which that debt-claim results, he must inform the new
creditor of this as soon as possible, unless the effects of this nullification
or rescission cannot be invoked against the new creditor.
- 2. After the debtor’s right of action to nullify or rescind the
juridical act has become prescribed, an appeal to a ground for the nullification
or rescission, made in defence of a legal claim or another legal remedy
based on that juridical act, must be addressed to the new creditor; subsequently
the debtor must inform the original creditor about this defence as soon
- 3. After the debtor has been notified that the debt-claim is encumbered
with a limited property right, the previous paragraphs apply accordingly
when he exercises his right to nullify or rescind the juridical act from
which that debt-claim results.
Section 6.2.2 Subrogation
Article 6:150 Grounds for subrogation
A debt-claim passes to a third person by means of subrogation:
a. if property of this third person has been
foreclosed (sold under execution) in order to settle that debt-claim;
b. if this third person has performed (settled)
the debt-claim himself because his property serves as security for it;
c. if this third person has performed (settled)
the debt-claim himself to prevent that property, not belonging to him, will
be foreclosed (sold under execution), provided that through this foreclosure
(sale under execution) he would lose his own title or right to that property
or the performance of one of his own debt-claims would become endangered;
d. if this third party has settled the debt-claim
on behalf of the debtor by virtue of an agreement with that debtor, provided
that the creditor, at the moment that his debt-claim was satisfied, already
knew of this agreement or already was notified of its existence.
Article 6:151 Restricted subrogation
- 1. A subrogation in accordance with Article 6:150 has no effect as far
as the third person himself is accountable for this debt in his internal
relationship with the debtor.
- 2. The rights of the creditor towards sureties and persons who are no
debtor themselves, yet liable, shall only pass to the third person in
proportion to the parts for which these persons each are accountable for
the debt in their internal relationship with each other.
Article 6:152 Internal contribution
- 1. Where a third person has acquired a debt-claim by means of
subrogation as meant in Article 6:150 and he is not able to recover it,
in full or in part, from the debtor, the irrecoverable part of the debt-claim
will be imputed to this third person and the persons meant in paragraph
2 of the previous Article, proportionally to the part for which each of
them was liable towards the creditor at the moment on which the third
person performed (settled) the debt-claim.
- 2. A third person who has acquired a debt-claim by means of subrogation
as meant in Article 6:150 cannot claim a higher amount from the other
persons involved in the imputation of the irrecoverable part than the
original creditor could have claimed from them at the moment on which
the third person performed (settled) the debt-claim.
- 3. Each of the persons involved in the imputation of the irrecoverable
part of the subrogated debt-claim remains entitled to recover his added contribution
from the persons who were unable to pay their internal contribution.
Article 6:153 Contractual interest
Where the primary right in a debt-claim is subrogated, the third
person is only entitled to the stipulated contractual interest as of the
moment on which the debt-claim has passed by subrogation.
Article 6:154 The original creditor may not damage
the third person
The creditor is towards a third person who, in the event that he performs
the debt-claim will be subrogated, obliged to refrain himself from
each behaviour (conduct) which will be detrimental to the rights that
this third person may expect to obtain as a result of the subrogation.
Section 6.2.3 Substitution of debts
and transfer of a contractual position
Article 6:155 Taking over a debt (‘debt assumption’)
A debt passes from the debtor to a third party if this third party takes
it over from the debtor. Towards the creditor the passage of the debt
(debt assumption) shall only have effect if he has given his approval
to it after the debtor and third party have notified him of the take over
Article 6:156 Creditor’s approval in advance
to a debt assumption
- 1. Where the creditor has given his approval in advance to a debt assumption,
the debt passes as soon as the debtor has come to an agreement over such
a debt assumption with a third party en they have notified the creditor
- 2. The creditor cannot revoke an approval which he has given in advance,
unless he has reserved himself this right.
Article 6:157 Passage of accessory rights
- 1. From the day that the debt has passed to the new debtor, the creditor
can no longer exercise the accessory rights related to his
debt-claim against the former debtor, but only against the new debtor.
- 2. A pledge or a mortgage on the property of one of the parties to the
debt assumption, serving as security for the debt that is taken over,
remains in force; a pledge or a mortgage on the property of someone else
and rights from a suretyship, however, cease to exist when the debt is
taken over by a new debtor, unless the pledgor, mortgagor or surety already
had agreed that in such an event the security remains in force.
- 3. Privileges attached to certain assets, that do not include a right
of recovery to be exercised against other persons than the parties to
the debt assumption, cease to exist when the debt is taken over, unless
the debt assumption takes place within the framework of a transfer of
a business or enterprise to which the asset belongs to which the privilege
is attached. After the debt is taken over, the privileges attached to
the property of the debtor are regarded as privileges attached to the
property of the new debtor.
- 4. Stipulated contractual rights, contractual penalties and periodic
penalty payments imposed by the court, that were incumbent on the debtor
before the debt was taken over, must be performed by the new debtor as
far as they have become due and demandable or forfeited, respectively,
after the moment that the debt had passed.
Article 6:158 Nullity of the agreement between the
old and new debtor
If the legal relationship between the former and new debtor, on the basis
of which the debt was taken over, is null and void or if it has been nullified
or rescinded, then the creditor may pass the debt back to the former debtor
by means of a notification addressed to both involved parties, in which
he states that the debt is indebted again by the former debtor; the former
and new debtor may to this end set a reasonable period within which the
creditor must give such a notification on the penalty of losing the right
to pass the debt back to the former debtor.
Article 6:159 Transfer of a contractual position
- 1. A party to an agreement may, with the cooperation of his counterparty,
transfer his legal relationship with that counterparty to a third party
by means of a private or notarial deed, drawn up for this purpose between
him and that third party.
- 2. As a result of such a transfer all rights
and obligations that have arisen or will arise from the agreement for
the transferring party will pass to the third party, as far as parties
have not agreed otherwise with regard to secondary (minor) or already
due and demandable rights or obligations.
- 3. Articles 6:156 and 6:157, paragraph 1 up to and including 3, apply
accordingly to a transfer of a contractual position as meant in the present
Section 6.2.4 Waiver and merger
Article 6:160 Waiver of his debt-claim by the
- 1. An obligation ceases to exist when the
debtor and creditor have entered into an agreement with each other in
which the creditor waives (abandons) his right to the performances (debt-claim)
that were indebted by the debtor because of that obligation.
- 2. An offer of the creditor, addressed to
the debtor, to waive his debt-claim gratuitously, is considered to be accepted
if the debtor, after he has become aware of this offer, has not rejected
it without delay.
- 3. Articles 6:48, paragraph 1 and 2, and 6:49, paragraph 1 up to and
including 3, apply accordingly to a waiver of an obligatory claim.
Article 6:161 Merger of the debt-claim and the
- 1. An obligation ceases to exist as a result of a merger when the passage
of a debt-claim or a debt to another property has the effect that
the capacity of debtor and creditor have become united in one and the
- 2. The previous paragraph does not apply:
a. as long as the debt-claim and the
debt belong to legally separated properties in which the involved person,
to whom the debt-claim and debt belongs, participates;
b. when a debt-claim to bearer or to order has been
transferred in accordance with Article 3:93 of the Civil Code;
c. if the fact that the capacity of debtor
and creditor are united in one and the same person is the result of a
juridical act under a condition subsequent, as long as it is not certain
that this condition will not be fulfilled.
- 3. When an obligation has ceased to exist as a result of a merger, this
has no effect on the rights of third persons.