Limitation in case of a deliberately hidden claim
Dutch law provides for an extension of the limitation period in relation to claims that were “deliberately hidden” from the creditor (article 3:321 (f) Dutch Civil Code). The extension also applies if the debtor deliberately hid the fact that the claim had become due and payable (upon fulfilment of a certain condition, for example). It is, however, unclear what kind of conduct qualifies as deliberate hiding.
Many debtors will simply sit still and be silent; is this alone sufficient to trigger an extension? In our contribution to the recent collection of essays on limitation in the Onderneming & Recht series from Radboud University Nijmegen (no. 120, edited by Stein et al.) we explore this issue in more depth.
In 2002, the Dutch Supreme Court held that giving false statements about the creditor’s entitlements qualifies as a denial of the claim, not as deliberately hiding it. While this judgement related to a false representation of the creditor’s rights, lower courts often refer to it when dismissing claims for extension of the limitation period in cases where the debtor has made false statements about the facts in reply to questions from the creditor. We believe that such statements will often amount to more than just a denial of the claim, and that such statements may actually qualify as deliberate hiding.
The fact that the creditor had started to ask questions may indicate that he suspected he had a valid claim. One may argue that the creditor is capable of interrupting the limitation period from that moment on. However, the benefit of the doubt should not go to the debtor who violated the truth.
Analysing recent case law, we conclude that four viewpoints contribute to deciding on the qualification as deliberate hiding:
(i) did the debtor have a legal or contractual obligation to inform the creditor of certain developments at his own initiative, and was the debtor aware of this obligation?
(ii) has the debtor merely been sitting still, or can some kind of “active hiding” be identified?
(iii) could the debtor sufficiently foresee that a claim would arise following the facts in dispute?
(iv) has the creditor asked the debtor whether he has a claim, or whether a condition for the claim becoming due and payable has been fulfilled?
As a side note, the extension option is only relevant for limitation periods that do not start running on the day the creditor gains knowledge about his claim: once he obtains knowledge, the claim is no longer hidden. The extension therefore does not apply to the well-known five-year limitation period for damages claims.
Readers with a WoltersKluwer Navigator subscription can view the whole contribution (in Dutch) here.
For more information on this subject, please contact Branda Katan or Cas Michiels.
