Een machtig wapen bij de incasso van een vordering: de informatieplicht van de schuldenaar <em>revisited </em>

In practice, it frequently happens that a debtor does not pay voluntarily. In that case, as a creditor, you can have a bailiff seize the debt. This can be done after obtaining a positive judgment, in which the debtor is ordered to pay (the enforcement phase), but also before obtaining a judgment (the conservatory phase). However, prior authorization from the interim relief judge is required for the imposition of prejudgment attachments.

As a creditor , you can recover your claim from the debtor's entire assets. These assets also include the debtor's claims against third parties. For example, if the debtor works in salaried employment, then under his employment contract he has to claim wages from his employer every month. 

It is also possible that the debtor receives monthly income from pension or benefits. These claims are also part of the debtor's assets and can therefore be attached. In this case, one also speaks of "garnishment".

The duty to disclose under section 475g Rv.

When a bailiff levies garnishment on a debtor's periodic income, the debtor is obliged, pursuant to article 475g Rv, to disclose his "sources of income" so that the bailiff can take them into account when calculating the garnishment-free amount. Reinier Pijls previously wrote an article about this information obligation.

Previously, it was generally assumed that the duty to disclose extends - in addition to sources of income - to declaration of assets (domestic and foreign). In 2021, however, the Supreme Court ruled that this is not the case, with the result that the scope of Section 475g Rv has been limited to some extent. The case that gave rise to the ruling was, in summary, as follows.

Background and process

In this case, the debtor was ordered by the court to pay a sum of money in excess of €50,000. The creditor subsequently seized the debtor's state pension benefit because he did not voluntarily comply with the judgment. 

Since this case involves a garnishment of a periodic income, the bailiff is in principle obliged to apply a garnishment free-foot under article 475c Rv. However, the AOW benefit was paid to the creditor without reduction of the garnishment free foot. In fact, both the creditor and the bailiff were of the opinion that the attachment-free-foot did not have to be applied because the debtor lived in Turkey and would have additional assets there.

The debtor then instituted summary proceedings against the creditor, in which he demanded the lifting of the attachment, or at least the application of the non-distraint rule, and repayment of the amount collected in violation of the non-distraint rule. The creditor in turn demands that the debtor provide a detailed statement of his entire income and assets both at home and abroad.

Both at first instance and on appeal, the creditor's counterclaim was rejected. To this end, the court of appeal considered that the information obligation of article 475g Rv only relates to sources of income in the Netherlands.

Foreign sources of income and assets (domestic and foreign) do not have to be declared by the creditor, the court said. The creditor lodged an appeal in cassation against this.

The scope of the duty to disclose: do declare domestic and foreign sources of income, do not declare (domestic and foreign) assets

The next issue in cassation revolves around the scope of the duty to inform under Section 475g Rv. Two questions are central here, namely:

• Does "sources of income" include foreign income?  
• Does this provision require the debtor to additionally declare his assets (domestic and foreign)?

As to the first question, the Supreme Court considers that the statement of "sources of income" is not limited to income in the Netherlands. The reason behind this is that foreign income is also important for determining the attachment-free amount. The debtor is therefore obliged to also report his foreign income to the bailiff.

Regarding the second question, the Supreme Court stated first that under Section 475g Rv, a debtor is only required to declare his sources of income, and therefore not his assets.

Indeed, the parliamentary history shows that the legislature intended the duty to disclose to be less far-reaching than the duty to disclose that rests on a debtor in bankruptcy.

For example, a debtor who has been declared bankrupt under Article 105 Fw is obliged to provide all desired information to the trustee. Furthermore, a bankrupt debtor is obliged to inform the trustee on his own accord about facts and circumstances that are important for the liquidation of the bankruptcy estate. In case of bankruptcy, therefore, a debtor does have the obligation to provide full disclosure of his assets. So the duty to disclose under article 475g Rv does not go that far.

The general duty to inform from Tripels/Masson

It should be borne in mind that the obligation to provide information under article 475g Rv applies only in the case of garnishment. However, this is not the only duty of information that rests on a debtor in the context of attachment and execution.

Indeed, in the Tripels/Masson ruling, the Supreme Court considered that a debtor who is ordered to pay a sum of money is, in principle, obliged to provide information to the creditor about his income and asset position and all assets subject to recovery.

This general duty to disclose information in the foreclosure phase finds its basis in the principles of reasonableness and fairness (Article 6:2 BW and Article 6:248 BW) and goes beyond the mere declaration of sources of income.

A creditor could therefore invoke this duty of information in addition to invoking article 475g Rv if he has a condemned judgment that he wishes to enforce on his debtor's assets.

Conclusion

The Supreme Court clarified in its ruling that the duty to disclose under Section 475g Rv is limited to declaration of sources of income in the Netherlands and abroad. Under this provision, the creditor is not obliged to declare domestic or foreign assets.

In our view, however, the Supreme Court's limited interpretation does not diminish the general duty of information from the Tripels/Masson ruling, which rests on a debtor in the foreclosure phase.

Therefore, if you, as a creditor, have obtained a positive judgment, then, in our view, with a targeted information request (and on the right basis), you can indeed require the debtor to provide information about its domestic and foreign assets.

The attorneys on our team specialize in high-end debt collection and can advise you on attachment and foreclosure issues. Please feel free to contact us with any questions in this regard.