Last week, the court in The Hague ruled on a dispute in which friends had lent EUR 100,000 to a friend’s private limited company. The company went bankrupt. There was a written agreement and verbal agreements had been made, which the court also took into account in its ruling. Nevertheless, it did not end well.

The facts

Friends discussed with a friend the conditions under which they would possibly lend EUR 100,000 to that friend’s private limited company. She emailed: “That pledge is actually the only security (apart from my word and honor) that I can give you right now.” And: “I want to keep my private life out of this on paper. But it would be against my honor to run away from my responsibilities. It’s a considerable amount that I’m borrowing from you, but not an amount that can never be repaid.”

The parties entered into a written agreement for a 10-year loan at 3% interest.

Six months later, the company goes bankrupt.

An email exchange follows. The friends remind their friend of their agreement during a walk, during which a number of things are agreed: “And we are very happy that you have at least promised to emphasize our verbal agreement regarding repayment during the walk.”

The friend replies that the settlement will be handled by the trustee, and: “My moral obligation to you remains unchanged. I wake up with it and go to sleep with it.”

Later, during a conversation, the friend confirms that it is still her intention to repay the loan within the agreed ten years. The conversation is recorded.

The friends demand that their friend repay the amount. The friend does not pay.

To court

The friends demand their money back on the basis of (among other things) the verbal agreement. In their opinion, this must be interpreted as joint and several liability of the friend in private. The friend disputes that she is jointly and severally liable, as she was the guarantor for the BV.

The assessment

The court first ruled on the conversations and email correspondence “my honor and word” and “too proud to run away from my responsibilities.” This does not show that the friend only wanted to enter into a non-enforceable moral or natural obligation. On the contrary, according to the court, an agreement was made that the girlfriend would repay the loan privately if the BV was declared bankrupt.

So that’s a good start. But the court then considers the question of whether this agreement qualifies as joint and several liability or as a private surety, as the girlfriend claims. The court explains that the decisive factor here is whether it was clear to the plaintiffs that the debt did not concern the friend, and that she only wanted to provide security for the debt of her company ( = surety), or whether the plaintiffs were aware that the debt did indeed concern her and made her directly liable for the entire amount alongside the company ( = joint and several liability).

The court ruled that this was a surety agreement. The legal relationship discussed during the walk was a separate additional agreement, alongside the written loan agreement. According to the court, this was preeminently a situation involving the provision of security.

The law protects natural persons against entering into surety agreements lightly. Therefore, a private surety can only be proven by means of a document signed by the surety (Article 7:859 of the Dutch Civil Code). A claim based on a private surety agreement can therefore only be awarded if there is proof of that surety.

Does it make any difference that part of the loan was spent on expenses that cannot be regarded as costs for the normal business operations of the private limited company? Not really. In that case, there is a mixed agreement: part of it is a private surety and part of it is not. Since these parts cannot be separated, the entire surety agreement falls under the protected regime of private surety, according to the court.

Since this is a case of private surety, the burden of proof that the surety was agreed upon rests with the friends. The plaintiffs have stated that there is no signed document and that they are therefore unable to provide this evidence.

Since the friend disputes the existence of the surety agreement and the plaintiffs cannot provide proof, the court must assume in its assessment of the claim that there is no surety agreement.

This leads the court to dismiss the claim. The friends are left empty-handed. In addition, they are ordered to pay their friend’s legal costs of EUR 6,662.

It may be harsh, but a judge cannot ignore the facts. The full judgment can be found at www.rechtspraak.nl under number ECLI:NL:RBDHA:2025:7995.

It is possible to do business with friends, but have the terms and conditions legally reviewed and set out in writing.

This article was written by Marijke Schmitz. If you have any questions on this subject, please contact her or one of her colleagues from the Corporate Law and Insolvency team. Appointments can be made at our offices in Maastricht and Heerlen.

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