TRANSFERS FOR NO CONSIDERATION UNDER THE LAWS OF THE NETHERLANDS ANTILLES
The law protects creditors
In general, Netherlands Antilles law does not prohibit transfers for no consideration. However, it should be pointed out that under Netherlands Antilles law statutory provisions exist which see to it that no transactions are done for no other reason than to disadvantage creditors or making recourse of creditors impossible. For example, Section 3:45, paragraph 1, of the Civil Code states that if an obligor, in the performance of a legal act to which he is not obligated, knew or ought to have known that this would adversely affect the possibility of recourse of one or more of his creditors, the legal act may be annulled; any creditor whose possibility of recourse has been adversely affected by the legal act may invoke this ground for annulment, irrespective of whether his claim arose before or after the act.
Section 3:46 states several (aside: refutable) presumptions of law in which one knew or ought to have known that such prejudice would be the result of the legal act.
Further, like in many other jurisdictions, transactions with the intention to escape past or current obligations could possibly constitute one or more tortious acts. The case law of the Supreme Court shows for instance that transferring money or other assets from one (group) company to another, leaving the creditors of the first company unpaid, is a tortious act. The Supreme Court ruled that the lawfulness and acceptability of a so-called split-up of the company into viable and non-viable units depends on whether the group’s most important creditors have been consulted and have consented. If the split-up took place without consultation and consent, it constitutes a tort (NJ 2002, 94).
Karel Frielink
Attorney (lawyer) / Partner
