Introduction
A debtor who dissipates assets while creditors remain unpaid, it occurs more often than expected. Real property transferred to a relative for no consideration, rights of pledge created shortly before a bankruptcy, activities shifted to a new company while the debts are left behind in the old one. The patterns are recognisable; proving them requires speed and legal precision.
The law offers an effective remedy against this: the actio pauliana. A legal act that prejudices the recovery available to creditors may be annulled, after which the dissipated assets return. The pauliana exists in two forms, each with its own regime and its own burden of proof. Whoever knows the distinction knows which threshold must be met.
Two regimes: outside and in bankruptcy
Outside bankruptcy, each prejudiced creditor acts against the legal act itself, on the basis of Section 3:45 of the Dutch Civil Code (DCC). The annulment then operates only for the benefit of that creditor and no further than needed to remove its prejudice. Once the debtor is bankrupt, the trustee in bankruptcy takes over. The bankruptcy pauliana of Sections 42 to 47 of the Dutch Bankruptcy Act (Fw) operates for the benefit of the joint estate and carries more favourable evidentiary presumptions. The pivot is always the same: is there prejudice, and was that prejudice foreseeable?
The pauliana outside bankruptcy (Section 3:45 DCC)
A successful reliance outside bankruptcy requires three elements. The debtor performed a legal act it was not obliged to perform. As a result of that act, one or more creditors were prejudiced in their possibilities of recovery. And the debtor knew, or ought to have known, that this prejudice would be the consequence. It does not matter whether the creditor's claim arose before or after the challenged act.
Where the legal act is one other than for no consideration, think of a sale, a pledge or the provision of security, an additional requirement applies: the counterparty too must have had that knowledge. This double knowledge is in practice often the most difficult element. Where the act is one for no consideration, such as a gift, that requirement falls away and the creditor's position is stronger; the beneficiary is protected only to the extent it proves it is no longer enriched.
The annulment has relative effect. The creditor that challenges the act annuls it solely for its own benefit and no further than needed to remove the prejudice it has suffered (Section 3:45(4) DCC). The dissipated asset therefore does not remain entirely out of reach, but becomes available for recovery up to the amount of the prejudice.
Evidentiary presumptions: the burden shifts
Knowledge of prejudice need not always be fully proven. Where the act was performed within one year before the annulment is invoked, and the debtor had not already bound itself to it before that period began, knowledge is presumed on both sides in a range of designated cases (Section 3:46 DCC). These include contracts in which the debtor's performance considerably exceeds that of the counterparty, the provision of security or satisfaction of a debt that is not yet due, and transactions with related parties: a spouse and close relatives, group companies, directors and majority shareholders. In those cases it falls to the counterparty to make the contrary plausible.
The bankruptcy pauliana (Sections 42-47 Fw): non-obligatory and obligatory acts
In bankruptcy the evidentiary regime becomes more favourable, but a sharp dividing line runs between two kinds of legal act.
For a non-obligatory act, Section 42 Fw gives the trustee in bankruptcy its own power to annul it by an extrajudicial declaration, provided the debtor knew or ought to have known that prejudice would result (and, for acts other than for no consideration, the counterparty as well). Section 43 Fw adds the same presumptions as Section 3:46 DCC: for transactions within one year before the bankruptcy with related parties, or where the consideration falls considerably short, knowledge is presumed on both sides, subject to proof to the contrary.
For an obligatory act, typically the satisfaction of a debt that is already due, the bar is much higher. Section 47 Fw allows annulment only in two situations: where the recipient knew that the bankruptcy had already been petitioned, or where the payment resulted from consultation between debtor and creditor aimed at preferring that creditor over the others. The Supreme Court reads that consultation strictly, as collusion: the intention to prefer this one creditor over the others must have been present on the debtor's side too, not only the creditor's (Cikam/Siemon q.q., Supreme Court 7 March 2003, ECLI:NL:HR:2003:AF1881). That is hard to prove and is assumed above all where debtor and creditor are under common control. Whoever chooses the wrong regime loses at the threshold: an obligatory payment cannot be attacked with the broader test of Section 42 Fw.
The distinction is decisive for the outcome. In a case concerning a director who muddled on with a loss-making company, pledges and deliveries to group companies were annulled and the trustee in bankruptcy successfully recovered EUR 975,000.
Knowledge of prejudice: the pivot
Both inside and outside bankruptcy, almost every case turns on knowledge of prejudice. The Supreme Court applies a settled test: knowledge of prejudice exists where, at the time of the act, the bankruptcy and a shortfall in it were foreseeable with a reasonable degree of probability (ABN Amro/Van Dooren q.q. III, Supreme Court 22 December 2009, ECLI:NL:HR:2009:BI8493). It concerns real foreseeability, assessed as at the moment of the act itself. Whether prejudice has actually arisen, by contrast, is assessed as at the moment the court rules on the claim (Supreme Court 19 October 2001, ECLI:NL:HR:2001:ZC3654). The burden of proof rests on the party invoking the pauliana, unless a statutory presumption shifts it.
A coherent set of legal acts
Assets are rarely dissipated in a single act. More often there is a sequence of steps that produces the prejudice only in combination: a transfer, followed by pledges, buy-back arrangements and assumption of contract. In 2025 the Supreme Court clarified how Section 42 Fw then operates (Supreme Court 20 June 2025, ECLI:NL:HR:2025:975). Although the provision takes the single legal act as its starting point, acts may form so coherent a set that their consequences must be assessed in mutual connection. Prejudice, knowledge of prejudice and the non-obligatory character are then tested on the set as a whole, not on each act separately. It is sufficient that, at some moment in performing an act belonging to that set, it was foreseeable that the set would lead to prejudice. That widens the trustee's grip on constructions that look defensible step by step but hollow out the creditors as a whole.
Limitation
Outside bankruptcy, the claim to annul is time-barred three years after the power to annul became available to the creditor concerned (Section 3:52 DCC). Waiting is therefore not without risk. In bankruptcy the trustee invokes the annulment from its own power, but there too the rule holds: the longer the construction stands, the harder the proof and the recovery.
Speed and attachment
The longer one waits, the greater the risk that assets are channelled away further and that an eventual annulment proves empty. An annulment restores the recovery position only if there is still something to recover. Prejudgment attachment combined with an actio pauliana claim is therefore most effective while the possibilities for attachment still exist: it freezes the asset concerned before it is moved on. The consequences of the annulment, return of the asset or compensation of its value, become visible only once recovery is genuinely possible.
Relevant case law
- Supreme Court 20 June 2025 (ECLI:NL:HR:2025:975): for a coherent set of legal acts, prejudice, knowledge of prejudice and the non-obligatory character under Section 42 Fw are assessed on the set as a whole, not on each act separately.
- Supreme Court 22 December 2009 (ECLI:NL:HR:2009:BI8493), ABN Amro/Van Dooren q.q. III: knowledge of prejudice exists where the bankruptcy and a shortfall in it were foreseeable with a reasonable degree of probability at the time of the act.
- Supreme Court 7 March 2003 (ECLI:NL:HR:2003:AF1881), Cikam/Siemon q.q.: the consultation required by Section 47 Fw is collusion; the intention to prefer the paid creditor over the others must have been present on the debtor's side too.
- District Court Gelderland 17 December 2025 (ECLI:NL:RBGEL:2025:11452): payments to a related company shortly before bankruptcy annulled; the knowledge of the bankrupt who was also its director is attributed to that company and does not disappear by transferring the shares to a relative.
- District Court Zeeland-West-Brabant 2 April 2025 (ECLI:NL:RBZWB:2025:1894): a director who appropriated EUR 71,110 shortly before bankruptcy must repay it; an unproduced acquisition agreement whose contents he could not state made the payments non-obligatory and paulianistic.
- Court of Appeal Arnhem-Leeuwarden 19 April 2022 (ECLI:NL:GHARL:2022:3024): a mortgage created for a claim that is not yet due is non-obligatory; knowledge of prejudice suffices where the debtor could foresee it with a reasonable degree of probability.
- Court of Appeal The Hague 6 April 2021 (ECLI:NL:GHDHA:2021:572): where the same person exercises control over both debtor and creditor, the consultation to prefer required by Section 47 Fw is thereby given.
- District Court Midden-Nederland 1 June 2016 (ECLI:NL:RBMNE:2016:3159): an obligatory repayment cannot be attacked under Section 42 Fw, but was annulled under Section 47 Fw once it appeared the recipient knew the bankruptcy had already been petitioned.
- District Court Gelderland 28 June 2023 (ECLI:NL:RBGEL:2023:3494): after annulment under Section 42 Fw the asset must be returned; where return is no longer possible, its value at the time of the legal act applies.
What decides the outcome
Pauliana cases are rarely won or lost on the existence of the legal act; that is usually undisputed. They are decided on three points. The first is the qualification: obligatory or non-obligatory, because that choice determines whether the broad regime of Section 42 Fw or the strict test of Section 47 Fw applies. The second is knowledge of prejudice, where a statutory presumption or the involvement of related parties can shift the burden decisively. The third is the substantiation: the trustee who backs prejudice and value with documents wins; whoever leaves it at assertions fails, as in a case in which it was insufficiently substantiated that a customer base had actually been taken over. Speed and timely attachment finally decide whether a won annulment yields anything at all.