On 13 March 2026, the Supreme Court handed down judgments in two important cases concerning a bank's right of set-off (netting) after the reference date of Art. 54 of the Dutch Bankruptcy Act (Fw). Both cases concern to the question whether a bank may set off incoming payments against outgoing payments in the phase preceding the account holder’s bankruptcy or suspension of payments.
The reference date of Art. 54 Fw is the moment at which the bank knew or should have known that the account holder's bankruptcy or suspension of payments was to be expected. According to established case law, from that moment onwards a bank may no longer set off incoming payments against claims it has against the account holder, unless the amounts received constitute payment of claims pledged to the bank. It was unclear, however, whether this prohibition on set-off also applied to claims that the bank acquired against the account holder because it continued to execute payment instructions from the account after the reference date.
The Arnhem-Leeuwarden Court of Appeal in one case ruled that the bank may, even after the reference date within the meaning of Art. 54 Fw, set off debt that arises for the bank as a result of crediting incoming payments from non-pledged receivables to the debtor’s account against the claims the bank acquires against the debtor by subsequently executing payment instructions. The Den Bosch Court of Appeal however, ruled in the other case that Art. 54 Fw does preclude set-off in such a case.
By ruling so the Supreme Court confirmed the line of reasoning from previous case law stating that after the moment at which the bank is no longer acting in good faith within the meaning of Art. 54 Fw, the bank may not invoke set-off in respect of payments from non-pledged receivables into the account held by the debtor with the bank.
The Supreme Court’s ruling has finally granted a decisive answer to the question of set-off of outgoing payments and gives banks clarity on their rights in regard to financially distressed account holders.
Both Supreme Court rulings can be found here (in Dutch): https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2026:390; https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2026:391
For more information, please reach out to any member of the R&IDS group, including Barbara Slooter, Lenneke de Baar, Saskia Heumakers, Robert Woudenberg, Jako van Hees, Marc Orval and Bart Wijnstekers.