Suppose your company has a loan from the bank. As security for that loan, you have pledged your receivables from customers to the bank. If you fail to meet your payment obligations, the bank can invoke its right of pledge and collect the outstanding receivables directly from your customers. But may the bank also decide to waive part of your customer’s debt, without consulting you or, in the event of bankruptcy, the bankruptcy trustee?
On 2 October 2026, the Dutch Supreme Court gave a clear answer to that question. Every SME entrepreneur who deals with rights of pledge would do well to be aware of this ruling (ECLI:NL:HR:2026:1595).
What was the case about?
The case revolves around ING, which financed a real estate company with a loan of approximately 17 million euros. As security for repayment, ING had obtained an undisclosed right of pledge on the real estate company’s rental receivables from its tenant, an employment agency. After ING disclosed the pledge in June 2015 because the pledgor was not meeting its payment obligations, ING itself became entitled to collect.
The tenant, however, refused to pay the rent for a period of eight months, totalling more than €28,000. It believed that the leased premises had defects. On 14 March 2018, the real estate company went bankrupt. More than seven months later, ING concluded a settlement agreement with the tenant without involving the trustee: in exchange for a payment of €10,000, the remaining rent arrears were waived. The condition subsequent in the agreement, which applied if the trustee did not agree, was never invoked.
Instead, the trustee went to court and argued that ING had acted unlawfully by settling with the tenant without the trustee’s consent. The trustee also claimed €2,000 in damages for the contribution to the bankruptcy estate that had been missed as a result.
How far does the pledgee’s authority extend?
The district court rejected the trustee’s claims. The court of appeal reached a different conclusion and awarded the claims after all. ING then lodged an appeal in cassation with the Supreme Court. The Supreme Court dismissed the appeal on two related grounds, which are of great importance for legal practice.
First, the law makes a deliberate distinction between the power to collect and other creditor powers. As soon as the pledge has been notified to the pledgor’s debtors, the pledgee may demand performance, receive payments and give notice on a claim that is not yet due in order to make it due. Waiving a debt, agreeing a payment plan, converting the claim into damages and dissolving the underlying agreement, however, remain powers of the pledgor. The rationale: those powers profoundly affect the pledgor’s interests, whereas the pledgee is only interested in the claim to the extent that it secures its own loan. ING was therefore allowed to collect in order to secure its own claim, but not to decide on the entrepreneur’s behalf to simply give away part of the entrepreneur’s assets.
Second, companies cannot easily solve this problem by tucking it away in the small print. Dutch property law has a closed system: parties cannot give a right of pledge any content other than what the law allows, and Article 3:246 of the Dutch Civil Code does not provide that room. If the power to waive a claim is included contractually, the arrangement is valid between the contracting parties, but it never becomes part of the right of pledge itself. ING had tried to do this with its general pledge conditions, but without success. Because ING had given up the claims without the consent of the real estate company, the Supreme Court ruled that it had acted unlawfully and had to compensate the €2,000 contribution to the estate.
What does this ruling teach you as an entrepreneur?
The core message is simple: a right of pledge gives the bank the right to collect the claim, but not to make decisions about your assets on your behalf. If you pledge a claim as security, you remain authorised, even after notification of the pledge, to waive the claim, agree a payment plan or dissolve the agreement, and in the event of bankruptcy that authority passes to the trustee. General terms and conditions and deeds of pledge have their limits in this respect: a provision allowing the bank to settle independently only applies between the contracting parties and lapses as soon as bankruptcy occurs.
What does this ruling mean for you in practice?
If your company pledges receivables to the bank, check the credit documentation for provisions allowing the bank to settle independently or to waive claims: these offer no guarantee against a trustee, and as a pledgor you are better off avoiding them. If you are the debtor of a pledged claim and the pledgee offers to waive part of it, check whether the pledgor or trustee needs to be involved and record that consent in writing. And if you are a pledgor yourself and your company goes bankrupt, bear in mind that powers such as waiving claims and agreeing payment plans do not lie with the pledgee, but pass to the trustee.
Need help with your security rights or financing documentation?
Would you like to know whether your financing agreement and general terms and conditions offer you sufficient protection? We, the corporate lawyers of The Legal Company, are happy to review this documentation for any risks and to include adequate safeguards. The Legal Company also provides legal support in disputes between pledgor and pledgee. Feel free to contact us at info@thelegalcompany.nl or 020-3450152.
Blog by our corporate lawyer Hella Vercammen LL.M.
