A recent Supreme Court ruling on Holding/Heijmans Infra determined that a claim not included in the pledge list is insufficiently determined and therefore not pledged. It therefore remains important to always look carefully at the wording when drafting a deed of pledge and ensure that it is as broad as possible.
What was going on?
A company undertook to provide a pledge of all its receivables from third parties. That pledge, the parties agreed, would be made by established forms or by other documents evidencing the pledge. Several years later, a (successor) pledge deed was recorded showing the outstanding claims at that time, with the claims listed on attached computer list(s)/specifications. The claim at issue in these proceedings, from the company to Heijmans, was not on the list of claims.
One day after the registration of the continuation pledge deed, the company goes bankrupt. Heijmans argues that the claim was not pledged because it was not mentioned in the deed of pledge.
The District Court rejected this defense and ordered Heijmans to pay the claim because the pledgor and pledgee would have intended to pledge this claim as well. The Court of Appeal and the Supreme Court disagree. The parties specifically agreed that the claims to be pledged would be explicitly listed with the deed of pledge. The claim is not on that list and is therefore not pledged. There are also no leads on the basis of which it can be determined retrospectively from the deed of pledge whether this claim against Heijmans was pledged. Interpretation of the deed of pledge does not help the pledgee.
Establishment of a quiet lien
The establishment of a silent registered pledge is done by an authentic or registered private deed, without notifying the debtor of the pledged claim. For this pledge, it is important that the claim to be pledged is sufficiently determined in the deed of pledge. According to established case law, this requirement of certainty is met if the deed of pledge contains such information that, if necessary in retrospect, it can be determined on the basis of that information which claim has been pledged. The latter requirement often gives pledgees, such as financiers and banks, ample opportunity to construct, even retrospectively, that/which claims are pledged.
A question other than the question of whether the requirement of certainty has been met is the question of how the deed of pledge should be interpreted and what the parties could reasonably expect of each other in the given circumstances (Haviltex standard). Indeed, in these proceedings it was argued that it would have been the intention of the pledgor and pledgee to also pledge the claim against Heijmans.
Both the Court of Appeal and the Supreme Court ruled that interpretation of the deed of pledge itself is not relevant to the question of whether the certainty requirement has been met. Because this case specifically included how the pledge should be executed and which claims were pledged, while the claim against Heijmans was not included in the deed of pledge, interpretation of the deed of pledge does not help here. After all, there were also no clues (such as a phrase: ... "all currently existing claims against third parties are pledged ...") that could, with hindsight, lead to the conclusion that this claim was also pledged.
Conclusion
At first glance, it appears that the Court and Supreme Court are applying a stricter standard in this ruling by ruling that since a claim is not on the deed of pledge, it is not pledged. However, because there was no information in the deed of pledge that could be used to determine in retrospect that this claim was also pledged, it went wrong here.
Thus, it remains very important to carefully draft the deed of pledge to avoid the possibility that a claim is not validly pledged after all.
