During a hearing a Dutch court may establish agreements between parties upon request in a so-called official report. But for how long can parties bring claims on the basis of agreements reached in this form? Dutch procedural law lawyer Marco Guit explains this on the basis of a case.
At the beginning this year the Supreme Court ruled on a case, in which parties during an oral hearing had asked the magistrate to record their settlement in an official report. This ended a procedure, which previously had taken place through a preservation order. The parties agreed that the debtor would repay an amount by a specified date, after which the seizure by the creditor would be lifted.
No payment was made. Although the official report was served within a few weeks by a bailiff to the debtor, the creditor then waited more than five years to take enforcement measures. The creditor could proceed to do so, because the official report was issued in an enforceable form. When actions were put in motion, the debtor requested a waiver of the seizure in a preliminary injunction. The debtor suggested that the repayment obligation had now expired and thus the basis for the seizure had lapsed.
The creditor suggested in brief that a 20-year limitation period applies to the official report and the regime is similar to the term for a condemnatory judicial or arbitration verdict. In general, judgements are not implemented for an indefinite period. Under the law a general limitation period of twenty years exists for legal sentencing and arbitral decisions in principle. There are several specific exceptions to this. The interim relief magistrate and the court did not participate in the argument of the creditor. However, the creditor lodged an appeal to the court of cassation.
The Supreme Court then ruled that an official report that is drawn up during a hearing upon request from the parties by a court with a view to the statute of limitations, cannot be placed on an equal footing with a legal ruling. This is despite the fact that it is being prepared by a magistrate and is published in enforceable form. It is not a judicial judgment, but a determination of agreements made by the parties. It also concerns a (settlement) agreement, that for any reason must be established with the statutory limitation period for claims arising from contracts of five years. The judgement of the court remained in effect.
As an intermediate judgement can also be recorded in an official report and this form can be classified as a court order, it can (according to the ruling of the Supreme Court) be concluded that it is not the form in which agreements are logged, but the content of the agreements that is important in the judgement to which a limitation period applies.
Do you have questions about the implementation of agreements set out in an official court report, or do you have questions about statute of limitations of claims in the Netherlands? Contact one of our lawyers.