What is a claim and how do you recover it?

A claim (vordering) is your right to a performance from another party: usually payment of money, sometimes delivery of goods or another act. Once the claim is due and the other party does not pay, you can put them in default, claim statutory interest and collection costs, and ultimately obtain a court judgment, but most payment claims become time-barred after five years unless you interrupt the limitation period in time.

Below we explain how a claim arises, when you can demand performance, how collection works in and out of court, and which limitation periods apply under Dutch law.

What is a claim?

A claim is what one person or company can demand from another. The person who is owed the performance is the creditor (schuldeiser); the person who must perform is the debtor (schuldenaar).

Most claims are claims for money, such as an unpaid invoice. A claim can also be for the delivery of goods, for carrying out work, for repayment of money paid by mistake, or for compensation of damage. The outstanding performance is often called a debt. The problem with a claim is that it is not always paid, even when the contract or the law requires it. That is why collection procedures exist.

How does a claim arise?

Most claims arise from a contract, but the law also creates claims, for example after a payment made by mistake or after damage caused by a wrongful act.

A claim usually arises from an agreement: you deliver goods or services, and the other party must pay the agreed price. Your right to payment then exists on the basis of the contract.

A claim can also arise without a contract. If you accidentally transfer money to the wrong bank account, you have made an undue payment (onverschuldigde betaling) and can reclaim the amount from the account holder under Article 6:203 of the Dutch Civil Code (BW). If you suffer damage because of someone else’s actions or omissions, you may be able to claim compensation. That obligation can arise from a breach of contract (Article 6:74 BW), from a wrongful act (onrechtmatige daad, Article 6:162 BW) or from another statutory provision.

When can you demand payment?

You can demand payment once the claim is due (opeisbaar). If the debtor does not pay on time, they are in default (verzuim), either automatically when a fixed deadline passes or after a written notice of default.

A claim is due when the agreed payment date has passed or, if no date was agreed, when you ask for payment. It is best to send your invoice or demand in writing, so you can later prove when the claim became due.

If the contract sets a fixed payment deadline, the debtor is in default as soon as that deadline passes without payment (Article 6:83 BW). Otherwise you usually need to send a written notice of default (ingebrekestelling) giving the debtor a reasonable final period to pay (Article 6:82 BW). From the moment of default, you can claim statutory interest (wettelijke rente) on the unpaid amount.

In transactions between businesses, the higher statutory commercial interest (wettelijke handelsrente) applies under Article 6:119a BW. If no payment term was agreed, it starts to run automatically 30 days after the invoice date. For consumers, the ordinary statutory interest applies.

Collection costs

You can also claim reasonable extrajudicial collection costs (buitengerechtelijke incassokosten). For consumers, these costs may only be charged after a written reminder that gives the debtor at least 14 days to pay and states which costs will be charged if they do not (Article 6:96(6) BW). The maximum amounts are set by decree and depend on the size of the claim.

How does out-of-court collection work?

Out of court, you send reminders and a final demand yourself, or you engage a collection agency, a bailiff or a lawyer. None of them can force payment without a court judgment.

For relatively simple claims, businesses often use a collection agency or a bailiff (gerechtsdeurwaarder). For larger or disputed claims, it can be worth engaging a lawyer. A lawyer can assess and respond to the debtor’s defences, advise on a settlement, and move on to court proceedings if needed.

If the debtor does not respond to the demands and out-of-court collection fails, you can start legal proceedings. If there is a real risk that the debtor will get rid of their assets, you can ask the court for permission to make a prejudgment attachment (conservatoir beslag) before or during the proceedings.

How does collection through the court work?

To force a debtor to pay, you need an enforceable court judgment. In most cases you start proceedings with a writ of summons (dagvaarding), which a bailiff serves on the debtor.

For claims of EUR 25,000 or less, and for certain types of cases regardless of amount, such as employment, rent and consumer purchase disputes, the subdistrict court (kantonrechter) has jurisdiction. You do not need a lawyer there, although hiring one can be sensible. For larger claims, the civil division of the district court (rechtbank) hears the case, and you must be represented by a lawyer.

The writ of summons must be drafted carefully. It must meet the formal requirements of the Dutch Code of Civil Procedure (Rv). If it does not, the claim may be dismissed or declared inadmissible, and you lose time and money. For consumers, the summons must also show that the statutory requirements for interest and collection costs have been met.

Once you have a judgment in your favour, you give it to a bailiff. The bailiff serves the judgment on the debtor and can then enforce it, for example by attaching the debtor’s bank account, salary or other assets.

When does a claim become time-barred?

Most claims for payment become time-barred five years after the day following the day they became due. The general limitation period is twenty years, and a business’s claim against a consumer for payment for goods expires after only two years.

It is therefore important to collect your claim promptly. Which period applies depends on the type of claim. The rules are in Articles 3:306 to 3:310 BW, which you can read on wetten.overheid.nl. A limitation period of five years applies to:

• claims for performance of a contract to give or to do something, such as repayment of a loan (Article 3:307 BW);
• claims for periodic payments, such as rent, interest or wages (Article 3:308 BW);
• claims for repayment of an undue payment, running from the day after you became aware of the claim and the person liable (Article 3:309 BW);
• claims for compensation or an agreed penalty, running from the day after you became aware of both the damage and the person liable, with an outer limit of twenty years after the event (Article 3:310 BW).

A separate rule applies to consumer purchases. A seller’s claim against a consumer for payment of the purchase price becomes time-barred two years after it became due (Article 7:28 BW). Businesses that sell to consumers should therefore not wait too long before collecting.

How do you interrupt the limitation period?

You interrupt the limitation period by sending the debtor a written notice in which you clearly reserve your right to payment (Article 3:317 BW), or by starting legal proceedings (Article 3:316 BW). After an interruption, a new period starts. For a five-year claim, the new period is again five years.

The notice must leave no doubt that you still want payment. A reminder, a payment demand or a summons can all serve that purpose. What matters is that you can prove the debtor received it if they later rely on limitation. Send important notices by registered post and by email, and keep the proof.

What happens when a claim is time-barred?

A time-barred claim does not disappear, but you can no longer enforce it in court if the debtor relies on limitation. The court does not apply limitation of its own motion; the debtor must invoke it.

What remains is a so-called natural obligation (natuurlijke verbintenis, Article 6:3 BW). If the debtor pays voluntarily, they cannot reclaim the payment. In some cases, you can still set off a time-barred claim against a debt you owe to the same debtor (Article 6:131 BW). In practice, however, a time-barred claim is rarely worth much. Keep track of your deadlines, and determine for each claim which period applies.

In summary

• A claim is your right to payment or another performance, arising from a contract or from the law.
• Once the claim is due and the debtor is in default, you can claim statutory interest and, subject to conditions, collection costs.
• To force payment you need a court judgment; claims up to EUR 25,000 go to the subdistrict court, where no lawyer is required.
• Most payment claims become time-barred after five years, and a seller’s claim against a consumer after two years.
• Interrupt the limitation period in time with a clear written notice, and keep proof that the debtor received it.

Law & More’s lawyers assist businesses and individuals with collecting claims, from the first demand to enforcement of a judgment.

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