In its judgment (ECLI:NL:HR:2015:3023) of 16 October 2015, the Supreme Court further explained which conditions have to be met for an equity-arrangement to work as intended by the parties.
An equity-arrangement enables the lender to seek recovery from collateral provided by a debtor to another lender, which is not fully used by this other lender, in the event a debtor is declared bankrupt. This arrangement is always combined with a contract of surety (“borgtocht”). Each lender agrees to stand surety towards the other lender(s) for the payment of all claims that the other lender(s) have – or will have in the future – against the debtor. The parties agree that a lender is never liable under this surety for more than the amount he can recover from the debtor with the recourse action (“regresvordering”) after payment has been made to the other lender(s).
The above arrangement will only work if the recourse action is covered by the collateral provided by the debtor to the lender who has paid under the contract of surety to the other lender(s). There was some concern that the fixation principle would prevent this. This principle entails that the estate in bankruptcy (“faillissementsboedel”) stays intact from the date the debtor has been declared bankrupt.
In a previous judgment (ECLI:NL:HR:2004:AO7575) dated 9 July 2004 (Bannenberg), the Supreme Court decided that an equity-arrangement works if the debtor has accepted the obligation to satisfy the recourse action in a contract. If this is the case, the recourse action is a claim that already (conditionally) exists when the debtor is declared bankrupt and is therefore more than only a future claim. As a consequence, it is clear that the fixation principle does not prevent the recourse action from being covered by the collateral.
However, it was unclear what would happen if the debtor had not entered a contract to accept the obligation to satisfy the recourse action. There was also some doubt about whether the Supreme Court had revoked its decision in the Bannenberg case by its judgment (ECLI:NL:HR:2012:BU3784) of 6 April 2012 (ASR/Achmea). In the ASR/Achmea-judgment, the Supreme Court decided that the recourse claim of the surety which arises from the law, is only a future claim until the moment of payment by the surety.
With its judgment of 16 October 2015, the Supreme Court clearly stated that the equity-arrangement always needs the cooperation of the debtor. However, it is sufficient that the debtor enters as a party to the arrangement or to the contract of surety concluded by the lenders. Therefore, it is not necessary for the debtor to enter into a contract to accept the obligation to satisfy the recourse action. Without the debtor having accepted this obligation by contract, the recourse action is a future claim but that will not prevent the arrangement from working if the debtor has entered as a party to the arrangement or the surety.
Furthermore, the Supreme Court explained that the trustee in bankruptcy can annul the cooperation by the debtor with the Paulian action if the requirements for this action are met. In that case, the arrangement will not have the intended effect.
Finally, it is now clear that the Supreme Court did not revoke its Bannenberg-judgment with its ASR/Achmea-judgment. According to the Supreme Court, these judgments simply relate to different cases. The ASR/Achmea-judgment concerned a recourse action arising from the law. Such a recourse action is not an existing claim but a future claim that will only arise after payment. The Bannenberg-judgment concerned a recourse action accepted by a contract. Such a recourse action is a (conditional) claim that already exists before payment.