This debtor`s reporting obligation was unpopular with market participants. With regard to securitizations, factoring and financing of receivables on deliveries and services in which receivables or large groups of exposures are transferred to third parties, the obligation to notify the transfer to the debtor has often been found to be inoperable and, more importantly, economically undesirable. The repeal of the reporting requirement as a precondition for the valid transfer of a right under Dutch law has had a considerable impact on Dutch financing practices. In particular, factoring companies, securitizing companies and other institutions involved in the disposal of mass debts benefited from the simplified divestiture procedure and the resulting improvement in the protection of large creditors. The procedure for transferring ownership over or transferring rights was changed from 1 October 2004. The obligation to notify a debtor of a legally flawless assignment has been partially removed. Partly because only rights that already exist at the time of the transfer of ownership or that are acquired directly from a legal relationship existing on that date fall within the scope of the revised procedure. Contracting parties are free to exclude the assignment in their agreement (Article 3:83, paragraph 2, of the Dutch Civil Code). For example, a contractor of a distribution contract may prevent the distributor from assigning the distribution right to a third party: please note that, in all cases, a debtor is only required to pay the third party acquiring the transfer. Only the debtor`s notification will prevent the debtor from fulfilling his obligations by paying his former creditor. Until the debtor receives the assignment, the debtor must be relieved of his payment obligations when the debtor pays his former creditor. After notification, the debtor can only meet his payment obligations by paying the debt to the acquiring third party.
With regard to a transfer to the Netherlands and the 183-day rule, it is generally considered that, in the event of exceeding 183 days, the right to relocate the tax to the country where the work is physically performed is generally considered. This is not always true. Article 3:94, paragraph 1, of the Dutch Civil Code provides that a chosen act is carried out by an act and subsequent notification to the debtor (or the person against whom the right may be exercised). The plenipotentiary or agent may announce it. In this case, the transfer is not completed until after the debtor has been announced in advance. Under Dutch law, the general rule is that a chosen person (for example. B a claim) is chosen, unless the assignment is excluded by the law or the nature of the law (Article 3:83, paragraph 1, of the Dutch Civil Code). Practical alternatives have been introduced to address the objections of market participants. For example, in the case of securitization, the mandatory termination was deferred to the debtor. This occurred most often in combination with consignment agreements to compensate for the transfer of ownership and thus the entire transfer, which was not legally completed until the debtor had been terminated. There was an obvious risk that the termination would be too late, for example. B after the debtor concerned has already been declared bankrupt.
An purchaser`s right of appeal is extremely limited when the debtor goes bankrupt. In the case of factoring, for example, the factoring company has a much stronger right to the debtor when the assignment is advanced (and it is de facto “owner” of the debt) than when it is in the position of holder of an undisclosed collateral.