NL: Distribution of sales proceeds in retail failures22 September 2023
Last year I provided an annotation to a judgment of the District Court of East Brabant, concerning set-off by a pledgee (bank) in view of a (retail) bankruptcy.
The essence of the judgment was that the bank could not, by set-off, recover with priority a credit balance from a bank account held with it, arising from debit card payments related to store stock pledged to it, because it was not acting in good faith within the meaning of Art. 54 Fw.
The bank appealed, perhaps a bit against the current of previous case law, because of the impact on the bank's position in retail failures. Many more large and small retail failures are expected to occur. Today, for example, BCC was declared bankrupt. However, the Court of Appeal in Den Bosch upheld the judgment, because it saw no reason to adopt a (new) exception on the basis of previous case law. See here. The bank must turn to the legislature.
For further information, please contact:
Carry Dullaart, Partner
t: +31 20 3052030
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