Limits to the trustee's power of avoidance under the actio pauliana
The Gelderland District Court avoided the sale of commercial premises under the bankruptcy actio pauliana, but dismissed the trustee's monetary claim in full. Avoidance goes no further than is necessary to undo the harm to the estate: the objective relative effect of Section 51 of the Dutch Bankruptcy Act (Fw). The buyer also retains a set-off-able estate claim for the amount by which the estate benefited, and thereby keeps the trustee at bay.
Trustee avoids the sale of commercial premises, but comes up empty-handed
A trustee in bankruptcy avoided the sale of commercial premises by the later bankrupt debtor to a buyer, on the basis of the bankruptcy actio pauliana (Section 42 Fw). An earlier interim judgment had already established that this avoidance was valid: both the bankrupt debtor and the buyer knew that creditors would be prejudiced. Even so, the trustee was awarded almost nothing in the final judgment.
Avoidance operates retroactively to the moment of the sale (Section 3:53(1) of the Dutch Civil Code (DCC)). The premises had therefore never become the buyer's and remained the property of the bankrupt debtor. What the parties had performed towards one another — the transfer of the premises and the purchase price paid — had been performed without legal ground and had to be returned (Section 51(1) and (3) Fw). The trustee also claimed the rent that the buyer had collected in the meantime, on the basis of unjust enrichment.
District Court: the actio pauliana must not make the estate better off
The trustee attempted, by way of ex officio supplementation of the legal grounds (Section 25 of the Dutch Code of Civil Procedure (DCCP), invoking Sections 6:206 and 3:121 DCC), to claim all rent received by the buyer as fruits. That failed. The bankruptcy actio pauliana serves solely to restore the estate to the position it would have been in without the paulianistic act. Section 51 Fw limits avoidance: it extends no further than undoing the harm suffered. That is the objective relative effect. The harm from lost rent had already been limited in the interim judgment to six months; including the VAT payable by the bankrupt debtor, the court arrived in this judgment at €7,529.94. A higher award would not restore the estate but benefit it, and that does not fit the purpose of Section 51 Fw.
Then the buyer's set-off defence took hold. In determining what he gets back, the relevant measure is not the extent of the prejudice, but the extent to which the estate has benefited following the return of the premises (Section 51(3) Fw). The parties agreed that the estate had benefited by at least €46,493.82: that part of the purchase price had been used to pay off the mortgage debt of the bankrupt debtor to the first mortgagee. For that amount the buyer has an unsecured estate claim, and he may set it off (Section 6:127 DCC) against his estate debt of €7,529.94 for the rent. Because his debt is well below his claim, the set-off succeeds and the rent claim is extinguished in full.
What does this mean for trustees and counterparties?
For a trustee, this means: calculate before avoidance what will remain on balance. The actio pauliana is not an instrument to make the estate better off than without the transaction, and the counterparty, to the extent the estate has benefited, obtains a set-off-able estate claim that can cancel out the proceeds. It was not for nothing that the trustee here was also denied recovery of the extrajudicial costs: he ought to have seen the reliance on set-off coming.
For the counterparty, the mirror image applies. Even after a successful actio pauliana, the position need not be lost. Where its own performance has actually enriched the estate — as here, through repayment of a mortgage — an unsecured estate claim arises that can be brought into set-off. A party that substantiates this in a timely and concrete manner can largely neutralise an actio pauliana claim.
Frequently asked questions
What is the bankruptcy actio pauliana?
It is the trustee's power to avoid non-obligatory legal acts performed by the bankrupt debtor before the bankruptcy (Section 42 Fw). Knowledge of prejudice is required: both parties knew or ought to have known that creditors would be prejudiced by the act. For obligatory legal acts, the stricter criterion of Section 47 Fw applies.
How far does avoidance under the actio pauliana reach?
No further than is necessary to undo the harm to the estate. That is the objective relative effect of Section 51 Fw. Avoidance restores the estate to the position without the paulianistic act, but must not place the estate in a better position than before.
Can the counterparty set off after avoidance?
Yes. To the extent the estate has benefited from the counterparty's performance (Section 51(3) Fw), that counterparty obtains an unsecured estate claim. That claim can be set off against an estate debt, for instance the obligation to repay rent or fruits received (Section 6:127 DCC).
Gelderland District Court (Arnhem location) 11 February 2026, ECLI:NL:RBGEL:2026:1149 (following on from ECLI:NL:RBGEL:2025:3810).
Cited case law
District Courts: ECLI:NL:RBGEL:2026:1149 · ECLI:NL:RBGEL:2025:3810