Rupsje Nooitgenoeg: Over de ontwikkeling van het Nederlandse stille pandrecht op vorderingen

This contribution focuses on the development of the Dutch silent pledge on claims, which was introduced by legislation after the fiducia became prohibited. Financial institutions were of the opinion that the prohibition on the fiducia would limit the provision of credit and have negative economic consequences. The legislature was of the opinion that with the silent pledge the provision of credit could continue as a matter of course. This contribution traces the development of the silent pledge since then. It starts with a discussion of the introduction of the “silent cession” as a means of security, and then moves to the silent pledge. In terms of the Dutch civil code, a pledge can be created by means of an authentic or registered private deed without the knowledge of the debtor. The purpose of the authentic or registered deed is to ensure that a fixed date can be ascribed to the pledge to be able to determine the rank of the right of pledge in relation to the rights of third parties. Registration, however, does not mean registration in a public register – it is a silent pledge since no publicity is given to this encumbrance of assets. The author discusses the different aspects concerning the silent pledge: the pledge of future debts, a shortened registration period, the meaning of adequate definiteness in the deed, collective pledge deeds, and the collection and redress of the pledged debt. The issue of netting also comes to the fore. It is concluded that the banks have, by means of clever litigation, ensured that the silent pledge is used to their benefit. The silent pledge is currently functioning as a kind of generally applicable right of security. The flipside of the coin is that, in practice, almost every single susceptible asset is subject to a silent pledge, which means that at the insolvency of a debtor, after all the pledgees’claims are dealt with, there is almost nothing left for the concurrent creditors. As a result of the voracity of these very hungry caterpillars, there is nothing left in the insolvent estate. It is becoming clear that the position of the normal creditors in relation to the banks needs to be improved and strengthened