Practice areas: Business and Commercial Law, Debt Collection and Attachments, Restructuring and Insolvency
On 3 July 2026, the Dutch Supreme Court issue an interesting judgment concerning the requirement for specificity in the assignment of claims (ECLI:NL:HR:2026:1148). The Supreme Court confirmed that it must be possible to determine retrospectively, on the basis of objective evidence, which claims have been assigned. Witness statements regarding the assignor’s subjective knowledge are not, in themselves, sufficient for this purpose. The Court of Appeal ruled that the description‘claims (…) in so far as these are known to [the assignor] and could reasonably be known to him’ does not satisfy the requirement of specificity. The Supreme Court ruled that this judgment of the Court of Appeal does not demonstrate an error of law.
The present proceedings are what are known as ‘renvooi’ proceedings: proceedings that follow the contestation of a claim at a verification hearing in insolvency proceedings.
Triskalion B.V. (hereinafter:”Triskalion“) was declared bankrupt by a court order dated 5 January 2021. Triskalion had previously been declared bankrupt. That bankruptcy was discharged due to a lack of assets. Following the receipt of a subsequent asset, the liquidation proceedings were reopened, after which a new application for Triskalion’s bankruptcy was filed. The director of Triskalion (hereinafter: the “Director”) is married (the Director’s wife is hereinafter: the “Spouse“).
The Director was declared bankrupt on 17 September 2015. On 7 August 2017, the liquidator in the Director’s bankruptcy entered into a ‘settlement agreement and deed of transfer/assignment’ (hereinafter: the “Deed of Assignment“) with the Spouse. The Deed of Assignment states, amongst other things:“The liquidator transfers ownership of all remaining assets and claims of the debtor, insofar as these are known to him and could reasonably be known to him, including, in any event, the claim which the liquidator believes he has against Robi House II B.V.”
Triskalion was (once again) declared bankrupt on 5 January 2021. The Spouse subsequently lodged two claims for verification in the Triskalion bankruptcy proceedings: a claim for planning compensation of € 2,450,000 and a pension claim of € 725,922, arguing that these claims had been assigned to her by the Deed of Assignment of 7 August 2017. Cumberland Investments, a provisionally recognised creditor in the Triskalion insolvency, contested these claims. This led to the present referral proceedings.
The present proceedings essentially concern the scope of the requirement for specificity in the Deed of Assignment (and pledging) of claims. Under Article 3:84(1) of the Dutch Civil Code, the transfer of an asset (including a claim) requires: “a transfer by virtue of a valid title, effected by the person authorised to dispose of the asset.” Pursuant to Article 3:84(2) of the Dutch Civil Code, the title must“describe the asset with sufficient specificity”.
In the case of the transfer of registered claims (assignment), the transfer is effected by means of a deed drawn up for that purpose and notification to the debtor, or by means of an authentic or registered private deed drawn up for that purpose without notification (Section 3:94(1) and (3) of the Dutch Civil Code).
It is established case law that the requirement for specificity must not be interpreted too strictly. In the landmark judgment in Stichting Spaarbank Rivierenland v Gispen q.q. (Supreme Court 14 October 1994, ECLI:NL:HR:1994:ZC1488), the Supreme Court held that the claim need not be specified in the deed itself by stating details such as the debtor’s name or an invoice number. It is sufficient for the deed to contain such information that, if necessary at a later date, it can be determined on that basis which claim is at issue.
In practice, a generic description in a deed of assignment (such as ‘all claims against third parties’) is also common. It is sufficient for the deed to refer to objective criteria on the basis of which it can be determined retrospectively which claims are concerned. An objective criterion applies here: the subjective intention of the parties is irrelevant for the purpose of assessing whether the requirement of specificity has been met, in so far as that intention cannot be determined on the basis of information contained in the deed itself (Supreme Court 22 November 2019, ECLI:NL:HR:2019:1841).
In the present proceedings, the Court of Appeal ruled that the claims to be assigned were not sufficiently specified in the Deed of Assignment. The Court of Appeal considered that, in this case, the description was not purely generic in the sense that ‘all’ claims were being assigned. After all, the assignment was limited to those claims of which the liquidator was aware or could reasonably have been aware.
Furthermore, the Deed of Assignment contained no reference to objective evidence on the basis of which it could be determined which claims (apart from the claim against Robi House II B.V.) had been assigned. The Spouose referred to Triskalion’s annual accounts, an email and a bankruptcy report, but the Court of Appeal ruled that it did not follow from those documents that the liquidator was aware of the Director’s specific claims against Triskalion at the time of the assignment.
The court ultimately rejected the Spouse’s offer of evidence (the examination of the trustee as a witness) and held in this regard that the fact that witnesses establish whether the trustee was aware of the claims at the time of the assignment does not constitute objective evidence on the basis of which the specificity can be established.
The court concludes that the claims have not been transferred to the Spouse.
The Spouse is appealing to the Supreme Court. She complains, amongst other things, that the Court of Appeal’s judgment reflects an overly strict, or at least incorrect, standard for the requirement of specificity, or is otherwise incomprehensible or insufficiently reasoned. She argues that a claim is sufficiently objectively defined, even retrospectively, if, following the hearing of the liquidator, it is established that the liquidator was aware of the claim, or could have been aware of it, at the time of the assignment.
The Supreme Court clearly sets out the requirement of specificity:
“3.2 The transfer of property requires delivery pursuant to a valid title, effected by the person authorised to dispose of the property (Section 3:84(1) of the Dutch Civil Code). The title must describe the property with sufficient specificity (Section 3:84(2) of the Dutch Civil Code). This requirement of sufficient specificity (hereinafter: the specificity requirement) must not be interpreted strictly.4 It is left to the discretion of the court to determine the degree of specificity required.5 According to established case law, for the assignment or pledging of registered claims, it is necessary – but also sufficient – that the deed contains such details that, if necessary at a later date, the claims in question can be identified on the basis of objective information.6 The question of how specific the details must be must be answered on the basis of the circumstances of the case.7 A generic description of the claims to be assigned may result in a valid assignment if, on the basis of the description provided, it is possible to determine which claims have been assigned. The absence of further specifications regarding the claims in question need not therefore prevent them from being sufficiently specific within the meaning of Article 3:84(2) of the Dutch Civil Code.8“
The Supreme Court then assesses whether the Court of Appeal was entitled to reach its decision:
“3.3 In this case, the parties to the assignment described the claims to be transferred by the liquidator in the bankruptcy of [the Director] as ‘claims (…) in so far as these are known to [the liquidator in the bankruptcy of [the Director]] and of which he could reasonably be aware’ (…). The Court of Appeal’s ruling effectively holds that such a description does not automatically satisfy the requirement of specificity, and that it is necessary for the trustee in the bankruptcy of [the Director] of the claims to be transferred can be established on the basis of objective evidence. That ruling, particularly in the light of the considerations set out in 3.2 above, does not indicate an error of law. In the Court of Appeal’s view, [the Spouse] has not adduced any, or at least insufficient, objective evidence on the basis of which the insolvency practitioner’s knowledge, in the insolvency of [the Director], of the claims to be transferred can be established. That finding is not incomprehensible in the light of the documents before the court. In the absence of sufficient arguments on this point, the Court of Appeal was not required to allow [the Spouse] to adduce evidence of the insolvency practitioner’s knowledge of the claims in the insolvency proceedings of [the Director].”
The Supreme Court dismisses the appeal.
This judgment is of importance to anyone involved in the assignment of claims: not only sellers and buyers of claims, but also lenders who stipulate a charge over claims, creditors wishing to attach claims, and others.
If the claim to be assigned is not sufficiently specified, it is not transferred upon assignment, with all the consequences that entails. This judgement underlines the importance of careful documentation in the event of assignment and pledging.
Do you have any questions regarding the above, such as assignment, the requirement for specificity or the transfer of claims? Wieringa Advocaten has extensive experience in property law, the transfer of claims and disputes arising from insolvency. Please do not hesitate to contact us. We would be delighted to assist you!
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