What is a cooling-off period?
During the cooling-off period, the curator (also referred to as the receiver, liquidator, trustee, or administrator) is given time to investigate the debts and assets of the bankrupt company. They assess if the company might be able to make a fresh start. In the cooling-off period, the company can continue to do business.
Your rights as a creditor are temporarily suspended:
- You may not demand payments during this period.
- You may not claim any property that you own.
- You may also not claim goods delivered with 'retention of title'.
How long does the cooling-off period last?
The judge can set the cooling-off period for a maximum of 2 months. After that, the cooling-off period may be extended once, for a maximum of 2 months.
The judge can immediately set the cooling-off period when the bankruptcy is declared. Or at a later point in the settlement of a bankruptcy.
What is retention of title?
You can claim retention of title when selling your goods. This means that the customer only becomes the owner of the delivered goods when the purchase price has been paid in full. As long as your customer has not yet paid, you remain the owner of the goods. And you can reclaim them if your customer goes bankrupt.
How do you claim retention of title?
You can include the retention of title in your general terms and conditions or in the delivery agreement for the goods themselves. General terms and conditions only apply if you have informed your customer clearly and on time about these terms and conditions.
Retrieve goods with retention of title
During the cooling-off period, you cannot retrieve the delivered goods with retention of title yet. It is important, that you already let the curator know to which goods the retention of title applies during this period. The curator must ensure that these goods are not lost.
Do you want to reclaim your goods after the cooling-off period? In that case, you must inform the curator in writing. You can do this by sending a registered letter. Or you can have your letter delivered to your customer by a bailiff. The report of this official delivery is called a writ.
At the end of the cooling-off period, the curator will usually organise a collection day, on which you can pick up your goods. Does the curator incur costs for having your goods collected? Then they can charge you for this. You must first pay these costs before you can take your goods with you.
Disagreeing with the cooling-off period
Do you, as a creditor, disagree with the cooling-off period? And have you delivered goods with retention of title? In that case, you can request authorisation from the examining magistrate to exercise your rights.
If the examining magistrate gives you authorisation, you can claim your goods.
If you do not receive authorisation, you must wait for the cooling-off period to end. It is also possible for you to appeal against the cooling-off period itself in court.
What is an examining magistrate?
When a bankruptcy is declared, an examining magistrate is appointed. This examining magistrate can make certain decisions during the settlement of the bankruptcy, without having to convene a separate court hearing.
Are all creditors equal?
No. If the bankrupt company also has due and payable tax debts, the Dutch Tax and Customs Administration can seize the property (bodembeslag). The Tax Administration then has priority over some other creditors. Goods delivered with retention of title may also fall under this seizure. As a supplier, you must therefore inform the Tax Administration as soon as possible that retention of title applies to your goods.
Exception estate creditors
An exception also applies to estate creditors. In a bankruptcy, the debts that existed before the bankruptcy order are settled. In addition, new debts may arise during the bankruptcy. The law states that some of those debts are estate debts. Estate debts are, for example, the salary of the staff or the rent of the business premises in the period after the bankruptcy decision. The costs of the bankruptcy curator also fall under estate debts. Estate debts can be paid by the curator during the cooling-off period.