NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
need to be met. For example, a pledge on a patent is established by bilateral deed, whereas on a trade mark right or copyright it is established by deed. Rights of Secured Creditors A security creditor has the power, in the event the debtor is in default of payment of that for which the security interest has been established, to sell the security object and recover their claim from the pro - ceeds. In other words, execution takes place without the need for a prior attachment and an enforceable title. The security comes with the fact that the secured creditor can easily proceed with the enforcement (ie, the sale of the security object), and then has priority over the proceeds. How the enforcement is exercised depends on the security object. Usually, the pledgee will proceed to a public sale of the pledged object (an auction); in principle, the pledgee is not allowed to appropriate the pledged object. If the pledged object is a mon - etary claim against a third party, the simplest way for the pledgee to recover their debt is to collect the claim and offset it against their own claim against the pledgor. They can proceed to do so after notifying the debtor of the pledged claim of the pledge. When selling mortgaged property, as a rule, the sale takes place in public before a notary. In addition, the pledged or mortgaged property can be executed in an alternative manner with the permis - sion of the interim relief judge. For example, when executing a pledge on shares, there may be a need to execute in a different way than a public sale. A pri - vate sale with the permission of the interim relief judge might lead to a more desirable result, as it might gen - erate higher proceeds or because a transfer restriction blocks the public sale of shares. 2.4 Unsecured Creditors An unsecured creditor has several powers they can invoke against a debtor. One of them is a retention of title in the event of a sale of goods. Such a reservation will occur in the form of a transfer under the suspen - sive condition of satisfaction of a certain performance, mostly payment of the purchase price. As long as this condition is not met, the selling party will retain full ownership of the delivered goods.
Besides the possibility of rescinding a contract, there is also the possibility for a creditor to invoke the right to claim back unpaid goods ( recht van reclame ). This statutory right entails that a seller of non-registered property, if the buyer fails to pay (in full), can reclaim the object, and regain ownership. The right of recla - mation lapses after a very short period, namely on the expiry of both six weeks since payment of the purchase price became due and 60 days from the day on which the goods were delivered to the buyer or to someone on their behalf. In addition, a creditor may have a power of suspen - sion. This means that a person, who has a claim against their creditor that is due and payable, may defer the performance of their obligation until the pay - ment of their claim has taken place. If the suspension concerns an obligation to deliver goods, such person may also have a right of retention. This means that they may suspend the obligation to deliver the goods until the claim is satisfied. Unless this is contractually prohibited, there may also be the power of setting off a claim with a counterclaim. Finally, a creditor may request the interim relief judge for (ex parte) permission to make a prejudgment attachment ( conservatoir beslag ) on specific assets of the debtor. The prejudgment attachment is just a conservatory measure; the creditor must obtain an enforceable title in order to be able to sell any attached asset and recover their claim from the proceeds. How - ever, an enforceable title is not only a court judgment, but also, for instance, a notarial deed of pledge, so a creditor who possesses such a notarial deed does not need to ask permission from the interim relief judge to make the attachment, but may enforce their claim directly. 3. Out-of-Court Restructuring 3.1 Out-of-Court Restructuring Process A debtor in financial distress has the option to restruc - ture their debts by means of an out-of-court/consen - sual restructuring. An out-of-court restructuring takes place in the form of an agreement, concluded on the basis of consensus without the involvement of a court.
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