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Clifford Chance

Clifford Chance

Briefings

Is there still a future for rental guarantees (Parts II and III)?

7 January 2014

In April 2011 we published a client briefing in relation to Part I of this series (Hoge Raad (Dutch Supreme Court) 14 January 2011 – Aukema qq vs Uni-Invest BV). In that case the question was raised whether the landlord was entitled to claim contractual damages in case of an early termination of the rental agreement in question by the liquidator (curator) in the bankruptcy of the tenant on the basis of section 39 of the Dutch Bankruptcy Act. It was held that such a claim for damages was not allowed as this would be contrary to the purpose (strekking) of section 39 DBA.


Recently two cases were published (Hoge Raad (Dutch Supreme Court) 15 November 2013 – Romania Beheer BV (Part II) and Hoge Raad (Dutch Supreme Court) 22 November 2013 – Transeuropean Properties IV NL Autodrome BV ("TEP") vs Mr J.C.M. Silvius/Mr P.J. van Steen qq (Part III)) in which the Dutch Supreme Court further developed (and complicated) its theory set out in Part I of this series.

Part II deals with the consequences of the termination of a rental agreement by the liquidator on the scope of the obligations of the guarantor of the tenants obligations under such agreement.

In Part III the Dutch Supreme Court decides that its theory just referred to also applies in situations where the rental agreement forms part of a financial sale and lease back transaction.

This client briefing deals specifically with Part II and Part III.

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