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No External Directors' Liability Towards the Lessor Due to Bankruptcy
In the case of a pre-constitutive act, a lease is entered into. Seven years later, the tenant goes bankrupt. The landlord holds the tenant's driver personally liable for rent arrears and loss of rent. The court dismisses the claim. When entering into the lease, the driver did not know that the tenant would go bankrupt. The driver has also not brought about or allowed the tenant to fail to comply with the lease. The lessor has not sufficiently stated and proved the personal serious accusation as well as the damage. It turned out that the leased property had not yet been leased months after the lease was terminated.
On April 24, 2013, the defendant (as a pre-constitutive act) concluded a lease with Woonwereld Onroerend Goed BV (hereinafter: Woonwereld), with effect from September 1, 2013. On July 8, 2013, Rofra Meubelen Waalwijk BV (hereinafter: Rofra Waalwijk) was incorporated, with defendant as intermediate driver. The lease is then ratified by Rofra Waalwijk.
After seven years, Rofra Waalwijk is financially in dire straits. On June 17, 2020, it will change its name to Meubelcomfort Waalwijk BV (hereinafter: Meubelcomfort).
On July 21, 2020, Woonwereld's lawyer sent a letter to the defendant, stating a payable rent of € 46,179.56 excluding VAT. It is also reported that the lessor has known since 20 July 2020 that the leased property is vacant and that the defendant will be held personally liable for the damage that Woonwereld has suffered and will suffer.
On September 15, 2020, Meubelcomfort will be declared bankrupt on its own declaration. On October 12, 2020, the trustee will terminate the lease by January 31, 2021.
Woonwereld claims from the defendant payment of € 37,146.05 (plus interest and costs), being the monthly rent from June 2020 to January 2021. This concerns overdue rent and loss of rent. Woonwereld argues that this damage was caused because the defendant did not inform her about the intended bankruptcy declaration of Meubelcomfort.
Woonwereld has held the defendant personally liable as the indirect director of the bankrupt Meubelcomfort. The court emphasizes that external directors' liability has a high threshold, because in principle only the company is liable towards third parties. See HR 20 June 2008, ECLI:NL:HR:2008:BC4959 (Willemsen/NOM). However, special circumstances can lead to a director being held liable (under Section 6:162 of the Dutch Civil Code) in addition to the company. This requires a serious personal reproach, taking into account the nature and seriousness of the violation of standards and the other circumstances of the case.
Shortcomings known when entering into agreement
First of all, a director can be seriously blamed personally if he “knew or should reasonably have understood when entering into that commitment that the company would not be able to fulfill its obligations and would not offer any recourse, except for circumstances to be put forward by the director on the basis of grounds on which the conclusion is justified that he cannot be seriously blamed for the prejudice.” This is called the Beklamel norm. See HR 5 September 2014, ECLI:NL:HR:2014:2627 (Beklamel) and HR 5 September 2014, ECLI:NL:HR:2014:2627 (RCI/Kastrop).
The judge ruled that the driver did not know or should have understood when entering into the lease that Rofra Waalwijk or Meubelcomfort would no longer be able to pay the rent seven years later. Since the lease agreement was entered into in 2013, the rent has been paid each time and rent arrears have been made up through payment arrangements. It is therefore also irrelevant that the lease was entered into by a pre-constitutive act.
Woonwereld considers the Beklamel norm applicable for each subsequent month since June 2020. The court does not follow this argument, because a lease that has yet to expire is not a new contract that is entered into on a monthly basis. The monthly obligation to pay rent arises from the commitment entered into when the lease was concluded.
Unnecessarily, the rent arrears are not regarded as unusual. Because Woonwereld and Meubelcomfort regularly made payment arrangements, there will not easily be a serious personal reproach because of the rent arrears.
Achieving or permitting failure
Secondly, the court states that a director can be personally seriously blamed if he "knowingly caused or allowed the company to fail to fulfill its legal or contractual obligations, with damage to his other party as a foreseeable consequence." Compare HR December 8, 2006, ECLI:NL:PHR:2006:AZ0758 (Receiver/Roelofsen).
The court rules that Woonwereld has not stated which standard the defendant would have violated in its own declaration of bankruptcy (by Meubelcomfort). Woonwereld has only stated that the defendant did this "consciously" and "thought only of himself". This would also be apparent from the name change, shortly before the bankruptcy. Woonwereld was, however, familiar with the financial situation of Meubelcomfort. The court also ruled that a director is authorized to limit the damage to the company, and that a director may cease operations for that purpose and file for bankruptcy for that purpose. The director is also authorized to make a name change without informing third parties.
Woonwereld also claims to have suffered damage because the leased property was emptied. Defendant, however, has argued insufficiently with reasons that it was not he, but the owners of the stocks that 'emptied' the leased property. The court ruled that it would have been desirable to inform Woonwereld about this, but failure to inform the lessor about the emptying of the leased property cannot lead to a serious personal reproach. In this regard, Woonwereld also states that it has been deprived of the opportunity to find another tenant and thus limit the damage. However, it turned out that on November 30, 2021, months after the lease was terminated, the property was still not rented out. If Woonwereld had wanted to limit its damage,
The court dismissed the claim and ordered the plaintiff to pay the costs.
Gelderland District Court 12 January 2022, ECLI:NL:RBGEL:2022:45 (published date: 19 January 2022)