SET-OFF UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Certain requirements must be met
Pursuant to the Netherlands Antilles Civil Code (article 6:127 et seq), the authority to set-off (‘verrekeningsbevoegdheid’), exists if
(i) the receivable and the debt (a) are between the same parties and correspond with each other (‘aan elkaar beantwoorden’) and (b) fall in the same estate (‘vermogen’) at both ends and
(ii) the party invoking the authority to set-off has authority both (a) to pay its debt to the creditor thereof and (b) enforce payment of the corresponding receivable (‘afdwingen van de betaling van de vordering’).
The parties to a contract may both restrict and expand the statutory possibility to set off debts and receivables.
Setting off a receivable from a person affected by insolvency proceedings against a debt to that person, is possible if both the receivable and the debt had come into existence by the time the person was declared bankrupt or was granted a suspension of payments. If insolvency proceedings are in effect, the requirement that the receivable from that person must be due and payable does not apply. However, contractual arrangements expanding the authority to set off debts against receivables beyond statutory limitations, will not be effective in relation to a person affected by insolvency proceedings.
Karel Frielink
Attorney (Lawyer) / Partner
