Verifiable claims

In the event of a bankruptcy, creditors may have three types of claims: a bankruptcy claim (een faillissementsvordering), an estate claim (een boedelvordering) or a claim that is not open to validation (een niet-verifieerbare vordering). In this alert, I want to talk about the first type, the bankruptcy claim. Bankruptcy claims can be submitted for verification/validation. That is the reason that such claims are also called verifiable claims. But which claims are verifiable? The Dutch Supreme Court recently clarified this in a landmark preliminary ruling procedure (Credit Suisse/Jongepier q.q., ECLI:NL HR:2018:424).

Two principles are paramount in Dutch bankruptcy law. On the one hand, bankruptcy does not affect existing reciprocal agreements and the obligations arising from such agreements. On the other hand, due to the bankruptcy order, the legal position of all those involved in the bankruptcy becomes invariable (the fixation principle) The Dutch Supreme Court states that the combination of these two principles ensures that claims that arise during the bankruptcy may also be verifiable. To be verifiable, these claims need to arise from a legal relationship existing at the time of the bankruptcy order. This legal relationship could be an at that time existing reciprocal agreement, but also - as the Supreme Court explicitly states - another legal relationship, such as a legal relationship arising from a debtor's wrongful act committed before the bankruptcy was ordered.

Another condition for verifiability is that new claims - as a result of the fixation principle - do not extend the claims that this creditor already had on the basis of his legal position at the time of the bankruptcy order. The fixation principle ensures that the legal position of a creditor after the commencement of the bankruptcy may not be changed in his favor. For example, even if such a provision was included in the credit agreement – in the event of a default on the side of the debtor a lender may not lodge claims for verification  when these claims relate to legal fees incurred by this lender in connection with the bankruptcy.

This obligation of the debtor arises as a result of the engagement of lawyers after the bankruptcy order, whereas the credit agreement at the time of the bankruptcy order provided the lender with the possibility, but not the obligation to engage lawyers. The claims that relate to reimbursement of these lawyers' fees are therefore not verifiable. Admission to verify these claims is contrary to the fixation principle.

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