As a supplier you have sold (movable) goods to a buyer who is declared bankrupt shortly afterward. The payment term has already expired, and the bankrupt buyer hasn't yet paid your invoice for the sold goods. In most cases, you can kiss your money goodbye, but sometimes there are ways to mitigate your losses if Dutch law is applicable to your agreement or you have agreed that title will remain with you until the goods have been paid. Below we discuss the options that may be open to you in case of bankruptcy.
The right of reclamation is an often-overlooked legal option for recovering goods after bankruptcy. This is a statutory right, which follows from Dutch law. If your claim for payment of the purchase price has is younger than six weeks old and the goods have been delivered within sixty days, you can reclaim your goods by sending a written statement to the buyer. In that case, not only is the agreement with your buyer dissolved, but ownership of the goods also reverts directly to you. In principle, you can reclaim your goods as the owner, even if the buyer goes bankrupt.
However, the right of reclamation is only valid for a short period. Therefore, make sure you invoke this right in writing to the trustee in bankruptcy in a timely manner and in writing. Your goods must also be sufficiently identifiable to the bankrupt party. For example, if part of them has already been used or removed from the packaging, it can be difficult to prove that these are your goods. It may then be wise to hire a lawyer to consult with the trustee.
You can also stipulate a retention of title in your agreement with the buyer or in your general terms and conditions. In this case, you are not bound by a deadline. You retain ownership of the goods until the invoice has been paid in full. In practice, however, this often goes wrong. If your general terms and conditions already apply, it is still possible for the trustee to invoke the annulment of those conditions, for example, if you did not bring them to the buyer's attention before or upon conclusion of the purchase agreement. Another well-known Dutch example of the general terms and conditions not applying was the bankruptcy of department store chain V&D, where many suppliers had signed a document that superseded their own general terms and conditions in favor of those of V&D.
Furthermore, you may not be the sole supplier of certain products. If the trustee cannot distinguish your products from those of third parties in the warehouse, your retention of title will be voided by confusion. Again, hiring a lawyer to represent you. can be crucial to you being able to retreive your goods. Your lawyer an check that the statements of the trustee are correct and they are acting accoring to Dutch law.
Unfortunately, dissolution of the purchase agreement does not offer a solution in the event of bankruptcy. Dissolution of the purchase agreement only results in a so-called obligationsto rescind the agreement. The purchase price no longer needs to be paid, and the sold goods must be returned to the seller. However, if the buyer goes bankrupt, you will be in line with the other creditors, because the trustee is not obligated to rescind the agreement and return the goods.
The lawyers at Bowmer & Nuiten Legal would happy to advise you if you are facing the bankruptcy of a buyer. Decisive action can often make the difference between getting your goods back or an uncollectible debt. Two of our lawyers are experienced bankruptcy recievers themselves.
Feel free to contact Maria Bowmer or Pim Nuiten.