Time-barred ground for annulment: when does it still work as a defence?

Limitation and the ground for annulment: claim or defence

Anyone who wants a contract, suretyship or other legal act annulled, for instance for abuse of circumstances or mistake, has in principle three years to do so. As a defence, the same ground for annulment can still be invoked after that period (Section 3:51(3) DCC). Three questions mark the boundary: does the other party rely on the legal act, does the plea serve solely to resist that reliance, and if not, is the action for annulment time-barred?

Suretyship signed before a hearing: plea succeeds after three years

In May 2012, shortly before a hearing in a case involving his company, a director and shareholder signed a note that his lawyer handed him. By signing it, he personally stood surety for the fees the lawyer had invoiced to the company. The company went bankrupt and €8,203.66 in fees remained unpaid. The lawyer sued the director as surety and the subdistrict court allowed the claim. Only on appeal, on 23 June 2015, did the director argue that the suretyship was voidable for abuse of circumstances (Section 3:44(4) DCC). The lawyer pleaded limitation: the suretyship had been signed on 22 May 2012, more than three years earlier. The 's-Hertogenbosch Court of Appeal rejected that in a single sentence. The director had raised the plea to resist a claim based on the suretyship, and he was free to do so at any time ('s-Hertogenbosch Court of Appeal 2016, paras 4.1 and 4.8).

On the merits, too, the director succeeded. A lawyer may accept no security for his fees other than a cash advance, save in special cases and after consulting the Dean. That rule had been breached, and the relationship between lawyer and client is, by its nature, usually one of dependence. The court reversed the judgment and dismissed the claim, and the lawyer had to repay €572.73: holiday pay he had attached on the strength of the subdistrict court's judgment ('s-Hertogenbosch Court of Appeal 2016, paras 4.6-4.7 and 4.10). How courts establish abuse in such cases is set out in the post on suretyships for legal fees. In 2012 the same court allowed a plea of abuse against a deed from 2004, almost seven years after the engagement had ended ('s-Hertogenbosch Court of Appeal 2012, paras 11.4.1-11.4.2). In both cases the answer to the three questions was obvious. In the decisions discussed below it was less clear-cut, and that is where the boundary shows.

Does the other party rely on the legal act?

Section 3:51(3) DCC protects against "a claim or other legal measure based on the legal act". A claim for payment under a suretyship is the obvious case, but other steps by which the other party relies on the legal act count as well. Three entrepreneurs agreed that two of them would take over the third one's shares, together with his €200,000 suretyship in favour of the bank. The arrangement would lapse if the turnover of one branch fell short, and the two invoked that condition. When the bank called on the third entrepreneur as surety, he demanded that the other two indemnify him. Only on appeal did he argue that the turnover condition had come about through abuse of circumstances. The Supreme Court held that invoking the condition was a legal measure based on the agreement. The plea of abuse served to resist it and could therefore be raised at any time, even though he was himself the claimant (Supreme Court 8 February 2013, para. 3.4.3).

The reason: as long as the other party remains passive and does not rely on the defective legal act, the other side need not take the initiative to annul it (Supreme Court 8 February 2013, para. 3.4.3). Earlier action by the other party does not make the plea too late. A firm acting for a director in his divorce obtained a mortgage for its fees over a building owned by his company. After an auction, the firm claimed priority in the distribution of the proceeds. Another creditor, a company belonging to his former wife, argued that the mortgage was voidable because it prejudiced that company's position as a creditor (Section 3:45 DCC, the actio pauliana). The firm argued that this plea was time-barred and that it had never been passive: its claim dated from 2016. The Amsterdam Court of Appeal nevertheless treated the plea as a defence against the priority sought, which could be raised at any time (Amsterdam Court of Appeal 2021, para. 3.4).

Is the plea purely defensive?

The plea must, moreover, serve to resist that step. A woman who had been a man's professional carer, and later married him, sought a declaratory judgment after his death that she was an heir alongside his children. The children sought to have the dispositions in her favour annulled: a professional healthcare provider who cared for the deceased in his final illness cannot, in principle, benefit from a disposition he made in her favour during that period. The woman pleaded limitation; for a testamentary disposition the period is one year (Section 4:54(1) DCC). The Supreme Court held that her claim was based on the will and that the children were resisting it, even though they did so by way of their own counterclaim (Supreme Court 16 January 2026, para. 3.1.2). According to the Advocate General, what is decisive is "the purpose and content" of the plea, and not "the procedural roles of the parties" (Advocate General's opinion of 9 May 2025, para. 4.6).

The same ground for annulment can thus be both defensive and offensive in the same proceedings. Two entrepreneurs and their new company sought annulment of a bank facility for mistake: they had applied for a facility that could grow with the business and received a different one. The bank counterclaimed for payment. Against that counterclaim the plea of mistake was defensive and immune from limitation; their own action for annulment was not. That action survived: an earlier start of the period had not been established, and the period had subsequently been interrupted in time (Arnhem-Leeuwarden Court of Appeal 2022, paras 3.9-3.11). A party who brings a claim of its own and needs annulment as its basis cannot rely on Section 3:51(3) DCC. A claimant seeking repayment on the basis of abuse of circumstances and mistake was not resisting any claim by the other party, so he should have claimed annulment himself or given notice of annulment out of court (Arnhem-Leeuwarden Court of Appeal 2021, para. 3.12).

A claimant can rely on that provision, however, where the other party relies on the legal act in its defence, as a landlord did when it invoked a voidable lease clause against a trustee in bankruptcy (Amsterdam Court of Appeal 2016, para. 3.5). For purchase agreements, the law makes an exception to the general rule. Actions and defences based on the item delivered not conforming to the contract become time-barred two years after the buyer's notice (Section 7:23(2) DCC). That also applies to a plea of mistake about the characteristics of the item ('s-Hertogenbosch Court of Appeal, September 2021, para. 3.38). The buyer does, however, retain the right to rely on a price reduction or damages in answer to a claim for the price.

Is the action for annulment time-barred?

If the plea is offensive, limitation comes into play. The period is three years, but its starting point depends on the ground (Section 3:52(1) DCC). For duress and abuse of circumstances it starts when the influence has ceased to operate; for fraud, mistake and prejudice to creditors, on discovery. The lawyer in the suretyship case counted from the date of signature, but with abuse the period may start later. According to the Advocate General in a case against a hospital, the period only begins to run once the injured party can actually exercise the power to annul (Advocate General's opinion of 6 July 2018, para. 3.94). For mistake, actual knowledge of the facts is required. That the entrepreneurs with the bank facility noticed a month after signing that they had a different facility from the one they wanted was not enough for that (Arnhem-Leeuwarden Court of Appeal 2022, paras 3.10-3.11).

The limitation period is interrupted by bringing a claim, and by a written demand if a claim follows within six months (Sections 3:316 and 3:317(2) DCC). In the bank facility case, the writ of summons in preliminary relief proceedings (kort geding), in which the entrepreneurs had already relied on mistake, had that effect, because the proceedings on the merits followed within six months (Arnhem-Leeuwarden Court of Appeal 2022, para. 3.11). Anyone who seeks annulment themselves must therefore issue a writ of summons within three years of the period starting, or interrupt the period in time.

What does this mean for signatories of a voidable deed?

What to do depends on what the other party does. As long as that party remains passive, anyone who signed a voidable suretyship, acknowledgement of debt or other security need not litigate as a precaution. That changes if the signatory wants to achieve something themselves, for instance to recover what has already been paid or to have a mortgage cancelled. That requires annulment first, and it must be invoked within the period: by a writ of summons or by an out-of-court notice of annulment to all parties to the legal act (Sections 3:49 and 3:50 DCC). For a mortgage or other registered legal act concerning registered property, such a notice only takes effect if all parties acquiesce (Section 3:50(2) DCC). The money claim that follows the annulment may be subject to its own limitation period.

If the other party claims payment under a suretyship or acknowledgement of debt, the ground for annulment can be invoked as a defence even years later, if need be only on appeal, as in the suretyship case. This is done in the proceedings themselves, with the facts that support the ground. A man who had signed an acknowledgement of debt during his relationship relied on mistake when the administrator appointed over his partner's assets (bewindvoerder) claimed €300,000 from him. The limitation defence failed; his plea of mistake failed only on the merits ('s-Hertogenbosch Court of Appeal, May 2021, para. 4.4).

With an acknowledgement of debt, the evidential force of the deed also plays a part. It can provide conclusive evidence between the parties that the debt exists (Section 157(2) DCCP). Where the acknowledgement is not notarial and only the debtor undertakes to pay, that applies in principle only if he wrote the whole deed by hand or added a handwritten approval stating the sum in words, unless he undertook the obligation in the course of his profession or business (Section 158 DCCP). Anyone who claims that the debt never existed must prove that with evidence to the contrary (Section 151(2) DCCP). A plea of a defect of consent is a different defence: it targets the way the acknowledgement came about, and the debtor need not unconditionally admit the debt in order to raise it. How far that evidential force extends is set out in the post on the conclusive evidential force of a deed.

If the other party enforces, the position is more difficult. With an enforceable copy (grosse) of a notarial acknowledgement of debt or mortgage deed, a creditor need not litigate: once that copy has been served, the creditor can attach assets and enforce (Section 430 DCCP). Anyone who resists must go to court themselves, in preliminary relief proceedings or an enforcement dispute, and is then formally the claimant. Under the Supreme Court's test, that role is not decisive (Supreme Court 8 February 2013, para. 3.4.3; Supreme Court 16 January 2026, para. 3.1.2). It is then natural to regard enforcement as a legal measure based on the deed, and a plea that serves only to resist it as defensive. Anyone who challenges enforcement after the period has expired would therefore do best to frame the claim as one to halt enforcement, with the ground for annulment as the reason.

If a judgment has already been given, the position is different. A final decision on the legal relationship may bind the parties in later proceedings (Section 236 DCCP). Section 3:51(3) DCC permits a defensive plea despite limitation, but does not override that binding effect. Against a judgment, the route is an appeal, as in the suretyship case.

What is decisive, then, is the purpose for which the ground for annulment is used. Anyone who needs annulment for a claim of their own must keep track of the limitation period. Anyone who merely resists a claim or other step by the other party can, in principle, still invoke the ground in court after that, however old the deed.

Cited case law

Supreme Court: ECLI:NL:HR:2026:62 (16 January 2026, para. 3.1.2; a plea of a ground for annulment to resist a claim based on the legal act is not subject to limitation, even when made by way of a counterclaim); ECLI:NL:HR:2013:BY2640 (8 February 2013, para. 3.4.3; invoking a condition subsequent is a legal measure; a plea of abuse of circumstances to resist it may be raised at any time); ECLI:NL:HR:2014:153 (24 January 2014, para. 5.14.1; a plea of a ground for annulment in court requires no particular form).

Opinions of the Advocate General: ECLI:NL:PHR:2025:515 (A-G Ibili, 9 May 2025, para. 4.6; the children's plea is defensive, not offensive; the purpose and content of the plea are decisive, not the procedural roles); ECLI:NL:PHR:2021:757 (A-G Wissink, 16 August 2021, para. 5.28.2; after limitation no offensive plea remains, but a defence does, also against the assignee); ECLI:NL:PHR:2018:785 (A-G Hartlief, 6 July 2018, para. 3.94; appeal in cassation dismissed under Section 81 of the Judiciary (Organisation) Act (Supreme Court 12 October 2018), the reasoning is the Advocate General's; for abuse of circumstances, limitation starts when the injured party can actually exercise the power to annul).

Courts of appeal: ECLI:NL:GHSHE:2016:4681 ('s-Hertogenbosch, 18 October 2016, paras 4.6-4.8; suretyship given to the lawyer annulled for abuse of circumstances; the limitation defence fails because the plea resists a claim under the suretyship); ECLI:NL:GHSHE:2012:BW7211 ('s-Hertogenbosch, 29 May 2012, paras 11.4.1-11.4.2; plea of abuse allowed under Section 3:51(3) DCC almost seven years after the engagement ended); ECLI:NL:GHAMS:2016:5365 (Amsterdam, 13 December 2016, para. 3.5; the landlord's reliance on a clause in its defence is a legal measure; the trustee in bankruptcy, as claimant, may invoke its voidability at any time); ECLI:NL:GHAMS:2021:1888 (Amsterdam, 22 June 2021, para. 3.4; a plea of the actio pauliana against a mortgage in referral proceedings in the ranking procedure is defensive, even where the mortgagee has not been passive); ECLI:NL:GHARL:2021:11891 (Arnhem-Leeuwarden, 28 December 2021, para. 3.12; a claimant seeking repayment must claim annulment or give notice of annulment out of court); ECLI:NL:GHARL:2022:10259 (Arnhem-Leeuwarden, 29 November 2022, paras 3.9-3.11; mistake as a defence to the counterclaim is not subject to limitation; their own action for annulment is, but had been interrupted in time); ECLI:NL:GHSHE:2021:2903 ('s-Hertogenbosch, 21 September 2021, para. 3.38; in sales, defences, including mistake, also become time-barred under Section 7:23(2) DCC); ECLI:NL:GHSHE:2021:3417 ('s-Hertogenbosch, 16 November 2021, para. 5.6; notice of the plea of annulment to the respondent who did not appear, given in the writ of summons on appeal); ECLI:NL:GHSHE:2021:1352 ('s-Hertogenbosch, 4 May 2021, para. 4.4; mistake as a defence to a claim for repayment under an acknowledgement of debt is not subject to limitation; the plea fails on the merits).

Juriaan de Vries is a lawyer at Prime Law, litigating commercial and corporate disputes. See the disclaimer.

See also

• Suretyship for legal fees annulled: three courts of appeal on a director-shareholder's personal security
• Lifting an attachment: when does the provisional relief judge grant it?
• Conclusive evidential force: what does a deed prove?