On 1 January 2017 a new law entered into force, supplementing Book 7 of the Dutch Civil Code (Burgerlijk Wetboek, the “DCC”) with the new sections 7.2a.2 and 7.2b.1 and 2 and a new title 7.2c (Consumer credit agreements, specific purpose loan and money loans) (In Dutch: De wet van 5 oktober 2016, houdende aanvulling van Boek 7 van het Burgerlijk Wetboek met de nieuwe afdelingen 7.2a.2 en 7.2b.1 en 2 en een nieuwe titel 7.2c (Consumentenkredietovereenkomsten, goederenkrediet en geldlening).
Since no new legislation regarding consumer credits was expected at the European level, the Dutch legislator made a decision to update the existing rules and merge the current fragmented legislation into a unified set of rules.
A number of rules on consumer credit agreements, sale in instalments and hire-purchase, which currently laid down in three different legislative acts, are now combined in the revised Book 7 of the DCC:
This revision is aimed at promoting legal certainty by clarifying and simplifying the legal texts, by reducing the number of applicable provisions and by providing a more streamlined classification within Book 7 of the DCC.
The second aim of the revision is strengthening consumer protection (a consumer being a person not acting in the pursuit of business or profession). The revised provisions will apply to consumers as well as businesses. However, the applicable rules will only be mandatory for agreements with consumers, whereas for agreements with businesses, the basic principle of freedom of contracts will continue to apply. This way, an adequate level of protection for consumers will be combined with the aim to reduce as much as possible the number of mandatory law provisions for business-to-business agreements.
These changes in legislation will also have consequences for financial institutions in their business with consumers.
The provisions of the new sections 7.2A.2 (consumer credit agreements) and 7.2b.1 (specific purpose loan) of Book 7 of the DCC are mandatory law. According to the new articles 7:83 and 7:97 DCC, financial institutions may not deviate from the provisions of the relevant sections to the detriment of the consumer. In case of a deviation from these provisions, the agreement with the consumer can be nullified in accordance with Article 3:40 sub 2 of the DCC.
In accordance with the general duty of care, applicable to the financial institutions under Article 4:24a of the Financial Supervision Act (Wet op het financieel toezicht) a financial service provider must take into account the legitimate interests of the consumer or beneficiary. The applicable provisions of the revised Book 7 DCC must therefore be taken into consideration by the financial institutions for consumer loans and other relevant types of loans.
