The Senate has passed the Abolition of Pledge Prohibitions Act and its effective date is known, which is July 1, 2025. The Act has an impact on how parties can agree on the transfer or pledge of personal monetary claims (geldvorderingen op naam) in contracts. In this article, we discuss the impact and practical implications of the Act.
Why the Act was introduced: bottlenecks in lending
The background to the Act is that banks and financiers are experiencing issues 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 contractual effects, but also an ‘in rem effect’ (goederenrechtelijke werking) depending on their wording. The consequence of clause with in rem effect is that the transfer (or pledge) is not effected. Particularly in the construction sector, the possibility of transferring or pledging monetary claims is excluded on a large scale. As a result thereof, monetary claims cannot be used as collateral for financing. The purpose of the Act is to give SMEs more access to credit.
Amendments to article 3:83 DCC on transferability of monetary claims
The current article 3:83 paragraph 2 of the Dutch Civil Code (“DCC”) provides that the transferability of claim rights can be excluded by a clause between creditor and debtor. The Act adds a third and fourth paragraph to Article 3:83 DCC. These new provisions (translated to English) read as follows:
Paragraph 3. Exclusion of transferability or pledgeability is not possible if it concerns a 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 transfer 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 ;
- which, pursuant to an agreement as referred to in Article 34, paragraph 3, 35, paragraph 5, or 35a, paragraph 4, of the Collection 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 DCC refers to rights of action in general. The prohibition of pledging and transferability in paragraph 3 specifically sees to personal monetary claims (geldvorderingen op naam). In addition, the prohibition applies only to personal monetary claims arising from the exercise of a profession or business. Monetary claims in the name of consumers are thus excluded from the prohibition .
Paragraph 3 applies not only to agreements that exclude transferability or pledging, but also to agreements that prevent transferability or pledging. It therefore not only covers non-transferability clauses under the property law and contract law, 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. 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 null and void as of July 1, 2025:
without the prior written consent of the employer, the contractor is prohibited from transferring, 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 Dutch Civil Code, which exclusion has in rem effect.
The prohibition in paragraph 3 applies to both the phrase in the first sentence ("without the prior consent") and in the second sentence ("transferability excluded"). The parties' agreement that claims may be transferred only after prior written consent is intended to make pledging or transferring more difficult. This means that the parties' freedom of contract is strongly affected. There may be numerous reasons why the parties exclude the possibility of transfer 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 prohibit a transfer or pledge are null and void (nietig). A transition period of three months (October 1, 2025) has been included for all existing agreements. Parties thus have three months to review and amend existing agreements .
Paragraph 3 further indicates that a clause between creditor and debtor that aims to exclude the transferability or pledgeability of a monetary claim in whole or in part, or to prohibit its transfer or pledging, is null and 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 transferred or pledged? After all, the prohibition in paragraph 3 applies only to personal 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 DCC.
Adaptation of the notification requirement
As indicated, also for existing agreements with a non-transferability 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 notification of the pledge or transfer can only be made in writing. To this end, a fifth paragraph will be added to Articles 3:94 and 3:239 DCC. If the notification is not made in writing, it will have no legal effect. This means that a disclosed transfer or pledge does not result in a transfer or pledge. An undisclosed transfer or pledge cannot be held against the debtor.
This requirement applies only to the transfer or pledge of monetary claims for which the underlying agreement contains an nontransferability clause. If not, the communication is (still) without specific formalities.
Impact of Act on freedom of contract and practice
Given the Act, it will be difficult for parties to get a grip on the transferring and pledging of monetary claims. After all, agreements that prohibit (complicate) the transfer or pledge are null and void. At the same time, parties may have valid reasons to limit the tranfer or pledging of monetary claims. For example, in intercompany agreements, 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 .
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