Het schemergebied voor faillissement - Höcker Advocaten

Hoofdstuk XIV
XIV.6 Creditors’ losses
To determine which losses occur to creditors due to the breach of the
(prolonged) Beklamel-standard or Pauliana-standard, the principle of fixation of
the assets and obligations at the moment of imputable breach should be used.
Losses can be the consequence of a decrease of assets and/or a decrease of net
assets (exploitation losses) and, rarely, an increase of liquidation losses. This
research has shown that the Dutch Bankruptcy Code does not fully meet the
requirements for assessing the losses and benefits of transactions according to
this fixation principle. Specific attention is given to the position of so-called
“new” creditors whose claims originate after the violation of the Beklamelstandard
and the concurrence of claims made by the receiver and these new
creditors against directors or other insiders. This research has shown that new
transactions may lead to both new assets and exploitation losses, which together
form the transaction price. A solution to the concurrence of claims is the action
by the receiver against insiders for losses and payment by the receiver out of the
proceeds of such claim and the new assets to unpaid new creditors.
XIV.7 Financiers
This research has shown that the position of the financier as a spider in the web
of solvency and insolvency is quite complicated. He operates more or less as an
insurer of insolvency. Nevertheless, it appeared that the (prolonged) Beklamelstandard
and the Pauliana-standard are useful and applicable to the financier.
Assessing the imputable losses of other creditors caused by actions of the
financier can be complicated specifically under the Pauliana-standard, since the
dynamic effects of financing a company should be accounted for. This research
has formulated detailed conclusions for financiers. In general, financiers should
make sure that from the beginning security is dealt with in a proper way; a
sufficient line of credit is available to set off liquidity fluctuations; the extent of
financing is limited to the extent of the required solvability; and the financing
shall be terminated at factual insolvency.
XIV.8 Jurisprudence
As a test, the conclusions of this research have been applied to many Supreme
Court cases. It appeared that the conclusions do concur in many ways with the
views of the Supreme Court but also show significant differences in approach or
outcome. To some extent these were due to the law (articles 47 and 53
Bankruptcy Code) or due to the techniques of proceedings. However, in many
cases it appeared that the parties involved and/or the courts insufficiently
determined the concrete financial data and its meaning. The application of
abstract standards has thus remained quite permissive.
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