Significance of the judgment
A joint and several debtor who has paid the creditor may take recourse against his joint and several co-debtors. It was unclear what the commencement date was for the time limit on such recourse claims.
In its judgment of 6 April 2012 (LJN: BU3784), the Supreme Court clarified this: the five-year limitation period set out in section 3:310 paragraph 1 of the Dutch Civil Code (DCC) only starts running after the joint and several debtor has made a payment in excess of his part of the debt.
The case before the Supreme Court arose from a dispute between Achmea Schadeverzekeringen N.V. (Achmea) and ASR Schadeverzekering N.V. (ASR). ASR had provided liability insurance to a woman who co-owned a Frisian horse together with a man, 50% each. In October 1990 the horse kicked its carer in the knee, resulting in a serious injury. In September 1995, the injured person turned to the man for compensation and, in early 1999, filed a court application for a declaratory judgment concerning the man's liability. The court confirmed in June 2001 that the man was liable and Achmea paid compensation to the injured person on behalf of the man. Having been subrogated to the man's rights, Achmea in turn started proceedings against the woman based on her (co-)liability for the damage caused by the injury. Achmea asked the court in those proceedings to declare that the woman and ASR had an obligation to reimburse Achmea for 50% of the damages paid to the injured party. This application was based on the woman being a 50% co-owner of the horse and therefore 50% jointly and severally liable for the loss arising from the accident.
One of the lines of defence by the woman and ASR was that Achmea's claim could no longer be exercised as the limitation period has expired pursuant to section 3:310 paragraph 1 DCC. According to the woman and ASR, the man had been aware what the damage was and who was liable since at least September 1995, and Achmea had had this knowledge since February 1996, when an expert's report was issued mentioning the woman as the horse's co-owner. More than five years had therefore passed before Achmea sued the woman and ASR in August 2001 for the damage caused to the injured party.
Uncertainty among legal practitioners and academics
There is uncertainty both among legal practitioners and authors about the moment when the limitation period of a recourse claim based on section 6:10 DCC starts running. Does the period commence after the joint and several debtor has actually paid more than his share and wants to take recourse against his joint and several co-debtor? Or does the period commence at an earlier moment, for example when a claim is made against a joint and several debtor that should cause this debtor to realise that, at some point, he may have to pay more than his share but will be able to take recourse against his co-debtor or co-debtors?
The ruling of the Supreme Court
The Supreme Court ruled that a recourse claim based on section 6:10 DCC is subject to the limitation period set out in section 3:310 paragraph 1 DCC as this type of claim can be regarded as a claim for compensation within the meaning of the latter section. The Supreme Court interpreted the wording in section 3:310 paragraph 1 DCC that the injured party has become aware of both the damage and the person liable as such that the injured party must have the actual ability to initiate a legal claim for compensation. According the Supreme Court, this means that the limitation period of section 3:310 paragraph 1 DCC cannot start running until the claim for compensation has become actionable. This then leads to the question when a recourse claim based on section 6:10 DCC becomes actionable. Based partly on the wording of sections 6:10 and 6:11 DCC and the legislative background of section 6:10 DCC, the Supreme Court found that a recourse claim arises when the joint and several debtor pays the debt in excess of his portion. As of that moment, the recourse claim will in principle become actionable.
A final point worth mentioning is the Supreme Court's finding that standards of reasonable and fair conduct, governing relations between jointly and severally liable debtors, do not entail that the limitation period of section 3:310 paragraph DCC starts running if a party seeking recourse fails to inform his co-debtor of a – potential – recourse claim. But according the Supreme Court, in situations where a recourse claim based on section 6:10 DCC is not time-barred, standards of reasonable and fair conduct may make it unacceptable to initiate a recourse claim, or cause the party seeking recourse to forfeit his rights, on the basis of facts and circumstances that (partly) occurred before the recourse claim arose.
The judgment means that the limitation period in respect of recourse claims based on section 6:10 DCC starts running at a relatively late moment. This is welcome news to parties that first focus on their defence against the creditor and only consider the position of co-debtors afterwards. But the Supreme Court's reference to standards of reasonable and fair conduct underlines that debtors would be wise to inform co-debtors at an earlier moment than the time limitation rules require.