Meanwhile, the Senate has passed the Abolition of Pledge Prohibitions Act ("OV Act") and its effective date is known, which is July 1, 2025. The OV Act has an impact on how parties can agree on the transfer or pledge of registered monetary claims in contracts. In this article, we discuss the impact and practical implications of the OV Act.
Why the OV Act was introduced: bottlenecks in lending
The background to the OV Act is that banks and financiers are experiencing problems in the context of lending to SMEs. This problem received particular attention after case law confirmed that nontransferability clauses in contracts can have not only contract law effect, but also property law effect (depending on their wording).1 The consequence of a property law nontransferability clause is that the transfer (or pledge) is not effected.2 Particularly in the construction sector, the possibility of transferring or pledging receivables is excluded on a large scale.3 Outstanding receivables cannot therefore be used as collateral for financing. The purpose of the OV Act is to give SMEs more access to credit.
Amendments to article 3:83 BW on transferability of money claims
The current article 3:83 paragraph 2 of the Civil Code provides that the transferability of claim rights can be excluded by a clause between creditor and debtor. The OV Act adds a third and fourth paragraph to Article 3:83. These new provisions read as follows:
Paragraph 3. Exclusion of transferability or pledgeability is not possible if it concerns a registered monetary claim arising from the exercise of a profession or business. A clause between creditor and debtor which aims to exclude the transferability or pledgeability of such monetary claim in whole or in part or to prevent its alienation or pledging shall be null and void .
Paragraph 4. The preceding paragraph shall not apply to monetary claims
- by virtue of a checking or savings account ;
- by virtue of a credit or money loan agreement which involves or will involve several parties on the part of the creditor ;
- from or against a clearing house, as referred to in Article 1:1 of the Financial Supervision Act, or a central counterparty, a settlement agent, a clearing house or a central bank, as referred to in Article 212a, parts c, d, e and g of the Bankruptcy Act ;
- d. which, pursuant to an agreement as referred to in Article 34, paragraph 3, 35, paragraph 5, or 35a, paragraph 4, of the Collection of State Taxes Act 1990, will be paid into a bank account held for the payment of income tax, sales tax and social insurance contributions.
Scope of the prohibition on exclusion and obstruction of transfer of monetary claims
Paragraph 2 of Article 3:83 BW refers to rights of action in general. The prohibition of pledging and transferability in paragraph 3 specifically sees to money claims in registered form. In addition, the prohibition applies only to registered monetary claims arising from the exercise of a profession or business. Money claims in the name of consumers are thus excluded from the prohibition .
Paragraph 3 applies not only to agreements that exclude assignment or pledging, but also to agreements that prevent assignment or pledging. It therefore not only covers inalienable clauses under the law of property and the law of obligations, but also agreements that make transfer or pledging more difficult. It follows from the legislative history that this includes, for example, clauses that impose a penalty on the transfer or pledging of monetary claims.4 Confidentiality clauses included for the purpose of hindering transfer or pledging are also no longer permitted. The following clause is also cited as an example of agreements that will be void as of July 1, 2025:
without the prior written consent of the employer, the contractor is prohibited from assigning, pledging or otherwise transferring to third parties any claims that it has or will acquire under the contract. With regard to these claims, transferability is excluded as referred to in article 3:83 paragraph 2 of the Civil Code, which exclusion has the effect of property law.
The prohibition in paragraph 3 applies to both the agreement in the first sentence ("without prior consent") and that in the second sentence ("portability excluded"). Indeed, the parties' agreement that claims may be transferred only after consent is intended to make pledging or assignment more difficult. This means that the parties' freedom of contract is strongly affected. Indeed, there may be numerous reasons why the parties exclude assignment or pledge. As a result, a debtor may suddenly find himself facing another creditor .
Nullity, even for existing agreements!
As of July 1, 2025, all agreements that exclude or oppose a transfer or pledge are null and void. A transition period of three months (October 1, 2025) has been included for all existing agreements. Parties thus have three months to review existing agreements .
Paragraph 3 further indicates that the stipulation between creditor and debtor that aims to exclude the transferability or pledgeability of a monetary claim in whole or in part, or to prevent its alienation or pledging, is void. How does this affect agreements to the effect that, for example, without the prior consent of the other party, claims under the contract may not be assigned or pledged? After all, the prohibition in paragraph 3 applies only to monetary claims and not to claims in general. It follows from the explanatory memorandum that in that case the consequence is partial nullity, namely on the basis of article 3:41 BW .
Adaptation of the notification requirement
As indicated, also for existing agreements with an nontransferability clause, as of October 1, 2025, monetary claims can still be pledged and transferred. Because it must be clear to the debtor of the claim to whom payment must be made, the communication of the pledge or assignment can only be made in writing.5 To this end, a fifth paragraph will be added to Articles 3:94 and 3:239 of the Civil Code. If the communication is not made in writing, it will have no legal effect. This means that a public assignment or pledge does not result in a transfer or pledge. A silent assignment or pledge cannot be held against the debtor.
This writing requirement applies only to the assignment or pledge of monetary claims for which the underlying agreement contains an nontransferability clause. If not, the communication is (still) form-free .
Impact of OV Act on freedom of contract and practice
Given the OV Act, it will be difficult for parties to get a grip on the assignment and pledging of monetary claims. After all, agreements that prevent (complicate) transfer or pledging are void. At the same time, there may be good reasons to want to limit assignment or pledging. For example, within groups, in agreements between governments and companies and in agreements that are so interrelated that the intention is that future claims can be set off against each other. An appropriate solution will have to be found in each case .
Do you have any questions as a result of this article? If so, please feel free to contact one of our specialists.
