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One of your customers is not paying their bills and is in bad financial condition due to the ongoing coronavirus crisis. You are therefore considering having his goods seized quickly. However, does that make sense and, by the way, won't there be a new 'ceasefire' for bankruptcies anyway?
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Do you offer extra protection? No, unfortunately not. Contrary to popular belief, a seizure does not create a privilege.
No priority in the event of bankruptcy then? No, if your customer should eventually go bankrupt, you will not be paid “as a priority” from the proceeds of the goods you seized. So you will continue to rank in the same place in the ranking of creditors and you will not have any privileges such as the NSSO, the Taxes and the staff.
Idea 1. However, you may be able to have the costs of the attachment yourself paid as a priority by the curator as so-called costs of preserving the case.
Idea 2. If you seize property, a mortgage that is subsequently established is not opposable to you.
A form of security for you, though. The fact that your attachment does not create a privilege does not mean that it is pointless to seize anyway. This is because by seizing, you can prevent certain assets owned by your customer from “disappearing”. For example, your customer can no longer “spend” funds held in an account that is seized, a property that is seized can no longer be sold, etc. In other words, you “protect” part of your customer's assets.
Also a pressure tool. If you seize, this may also encourage debtors to pay you quickly in order to get rid of the attachment and, for example, to be able to continue working with the bank account that is seized.
As a creditor, you cannot simply use a seizure as a means of pressure. If you do so, it may well be an abuse of attachment law. Your customer could then file an objection to the attachment and possibly even request compensation from you.
Is the juice worth the cash? An attachment is made through a bailiff and sometimes an authorization from the attachment court is also required to proceed with the attachment, which will require you to file a petition (e.g. via a lawyer). That is why you should always consider carefully with your lawyer whether it is worthwhile to make such a seizure. The cost of the attachment can be considerable, read: be sure to weigh it against the expected result.
For a third-party seizure (e.g. a bank account), an authorization from the attachment court is not always necessary. You can also sometimes lay that solely on the basis of the invoices you sent to your customer.
Announced. The federal government has indeed decided to introduce a new so-called moratorium on bankruptcies until January 31, 2021.
However, the law about this has not been published yet... If there is one, your customers who are in bad standing due to the corona crisis will temporarily not be declared bankrupt.
So no movable attachment possible? That depends on what is formulated in the law. As long as it is not published in the Official Gazette, you can certainly have another seizure...
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No news, good news!
The law states that any undisputed invoice can be considered an accepted invoice and must therefore be paid by the customer. At least if you invoice a company, because different principles apply to invoices to private individuals. However, traders must protest the invoice in question within a reasonable period of time if they plan not to pay it.
Exactly what that reasonable period entails is not specified, but in practice, a period of approximately 2 weeks after receipt of the invoice is considered fair for timely protest (slightly longer for complex invoices).
The dispute can also take place in various ways, for example by registered mail or by e-mail. In any case, it's not a bad thing to mention in your Terms and Conditions how and when customers can protest invoices.
So far the formalities, but what if your customer disputes your invoice?
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