Introduction
In a bankruptcy the debtor loses the management and disposal of their assets, and a trustee (curator) takes office to administer and liquidate the estate for the benefit of the general body of creditors. Various disputes arise around that task: over the trustee's powers, over acts performed before the bankruptcy, over the personal liability of the trustee, and over the director's liability for the deficit.
The trustee's task and powers
The trustee is charged with the administration and liquidation of the bankrupt estate (Article 68 of the Bankruptcy Act, Faillissementswet) and acts in the interest of the general body of creditors. The trustee can take far-reaching measures: terminating current agreements, realising assets and, with the authorisation of the supervisory judge, conducting proceedings. The trustee can moreover act on behalf of the general body of creditors against a third party that has prejudiced them. The Supreme Court accepted that power, the so-called Peeters/Gatzen claim, in the case where a home had been transferred to the spouse for too low a price shortly before bankruptcy: the trustee can claim damages in tort from the third party involved in the prejudice, even though that claim did not belong to the bankrupt (Supreme Court 14 January 1983, ECLI:NL:HR:1983:AG4521). The limit lies at claims belonging solely to individual creditors; those the trustee cannot collect.
The bankruptcy pauliana
Where the debtor, before the bankruptcy, performed a non-obligatory act that prejudiced creditors, the trustee can annul it by the bankruptcy pauliana (Article 42 et seq. of the Bankruptcy Act). For non-obligatory acts, knowledge of prejudice is required on both sides; for obligatory acts the stricter conditions of Article 47 apply. The annulment reaches no further than is needed to remove the prejudice to the estate. The requirements and the presumptions are developed on the page on the annulment for prejudice to creditors.
Personal liability of the trustee
The trustee can be personally liable where they perform their task carelessly, towards the general body of creditors and towards third parties such as the bankrupt. Where not bound by rules, the trustee has a wide margin of freedom. The test, developed in the Maclou judgment and refined in Prakke/Gips, is whether a trustee with sufficient insight and experience who performs their task with diligence and commitment could, in the circumstances, reasonably have arrived at the course taken (Supreme Court 16 December 2011, ECLI:NL:HR:2011:BU4204). Restraint is appropriate in that test: personal liability requires personal blame, meaning that the trustee saw, or ought to have seen, that their conduct was wrong.
Directors' liability in bankruptcy
Where the bankruptcy was caused in part by manifestly improper management, the trustee can hold the director liable for the estate deficit (Article 2:248 DCC), with a statutory presumption where the administration or publication duty is breached. See directors' liability in the broader sense. Where a non-director is addressed, what is decisive is whether they were a de facto director.
What decides the outcome
The outcome depends on the question of standing, does the trustee act for the estate or for an individual creditor, on the evidence of knowledge of prejudice in a pauliana, and on the substantiation of the improper management. Where the trustee themselves is reproached, the restrained Maclou test is decisive. Speed and file-building are usually determinative.