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Lifting an attachment: when does the provisional relief judge grant it?

16 July 2026Juriaan de Vries

Introduction

An attachment is quickly obtained. A prejudgment attachment requires only a petition, which the provisional relief judge usually grants without hearing the other party; an attachment in execution requires only a title — a judgment or a notarial deed. Getting rid of that attachment is a different matter entirely. It runs along two tracks that look alike at first sight but diverge sharply in law: the lifting of a prejudgment attachment under Section 705 DCCP, and the lifting or suspension of an attachment in execution under Section 438 DCCP.

The difference lies in the test. For a prejudgment attachment the provisional relief judge examines whether it is summarily evident that the claim is without merit, followed by a balancing of the mutual interests. For an attachment in execution the bar is higher: a title already exists, and the court will in principle only intervene where there is abuse of powers. In the thirteen judgments analysed below — five leading judgments of the Supreme Court and eight rulings from the lower courts — it becomes clear how these tests work out in practice, and where the pitfalls lie for both the attaching creditor and the party attached.

Prejudgment attachment: summary lack of merit and balancing of interests

The core rule for prejudgment attachment comes from De Ruiterij/MBO (Supreme Court 14 June 1996). Under Section 705(2) DCCP the attachment must be lifted if it is summarily evident that the right relied upon is without merit. The Supreme Court explained that it is "in the first place for the party seeking the lifting" to make it plausible that the claim is without merit. But it does not end there: that assessment "cannot be made in isolation from the balancing of the mutual interests that is required in such a case" (ground 3.3).

That is a two-part test, not a single one. The court weighs whether the claim holds up, and weighs the attaching creditor's interest in security for recovery against the attached party's interest in an unencumbered estate. Because it is a provisional judgment in preliminary relief proceedings, the reasoning is subject to "less stringent requirements than those to be imposed on the reasoning of the decision in the proceedings on the merits". The provisional relief judge therefore need not conduct an item-by-item examination of the size of the alleged claim; an assessment of plausibility suffices.

The judgment in Hwang/Nidera (Supreme Court 17 April 2015) sharpened two points. First, in weighing the plausibility of the claim the court is "not bound by the grounds stated in the attachment petition" (ground 3.5). The attaching creditor may therefore base its claim on a new ground in the lifting proceedings. Second — and this matters more in practice — the mere fact that the court on the merits has dismissed the claim does not, without more, mean that the claim is summarily shown to be without merit "where an appeal has been lodged against the judgment" (ground 3.8). In that case the mutual interests must again be balanced, with the decision on the merits carrying weight, but the court need not make a provisional assessment of the prospects of success of the appeal.

That rule recurs verbatim in the case law of the lower courts. The Court of Appeal of Arnhem-Leeuwarden (25 October 2022) dismissed the request to lift the attachment even though the district court had dismissed the underlying claim: that dismissal "under the settled case law of the Supreme Court does not, without more, justify the conclusion that the claim is summarily shown to be without merit" where an appeal is pending, and there was no "claim that is manifestly non-existent, time-barred or otherwise far too weak" (ground 3.7). The attached party had, moreover, insufficiently substantiated its interest in the lifting — bare tax assessments were inadequate support for the assertion that the house had to be sold under compulsion (ground 3.6).

When the interests tip the balance

The balancing of interests is no afterthought. It can bring down an attachment even where the claim is sound. The District Court of the Northern Netherlands (16 November 2016) held that it was not summarily evident that the claim was without merit — the question of who was the contracting party required the taking of evidence for which the preliminary relief proceedings were not suited (ground 4.5). Even so, the provisional relief judge lifted the attachment. Decisive was that the attached party was in acute financial distress, whereas the attaching creditor had put forward no fear of dissipation and no concrete financial interest in maintaining the attachment (ground 4.6). The scales tipped on the interests, not on the merits.

The passage of time also weighs in. In a case before the District Court of Limburg (10 August 2023) the attaching creditor, after being declared inadmissible, had lodged an appeal but then done nothing for almost five years; the matter sat on the parked docket. That the creditor "was up next" and remained inactive was decisive: "Decisive in this case is (…) the passage of time and the lack of action on the part of [the creditor]" (ground 4.5). An involuntary stay abroad was for his own account and risk. The attachment was lifted. The contrast with the Arnhem case is instructive: there the attachment held because the appeal was being pursued in earnest, here it fell because the creditor let it lapse. A prejudgment attachment is a temporary measure, and a party that lets the main action stall undermines its own attachment.

Lifting against security

Section 705(2) DCCP contains a third route that stands apart from the merits of the claim: where the attachment has been levied for a monetary claim, it must be lifted if sufficient security is provided for that claim. The District Court of Amsterdam (3 August 2023) specified what "sufficient" means: the security offered must "properly cover" the claim (with interest and costs) and the creditor must be able to "take recovery from it without difficulty", while the substitute security need not be equivalent in every respect to the attachment (ground 4.3, cf. Section 6:51(2) DCC).

What is notable in that case is the form of the security. The attached party offered to leave an undisputed counterclaim unpaid: if the attaching creditor were to prevail in the proceedings on the merits, it could set that claim off against what it itself still owed the attached party. This "provisional non-payment of an undisputed monetary claim" can serve as adequate substitute security (ground 4.3). The creditor sought to dispute the counterclaim after the fact, but that did not avail it: its own earlier correspondence showed that the claim was undisputed, and the court did not regard that belated dispute — raised precisely when the claim was offered as security — as genuine (ground 4.9). The attachments were lifted, in part because a balancing of interests pointed the same way: the attachments struck assets of more than €2 million for a claim reassessed at €354,610, and thereby had an "excessive character" (ground 4.13).

The risk after lifting: revival

A party that obtains a lifting is not always home and dry. The judgment in Forward/Huber (Supreme Court 5 September 2008) shows what happens where a provisionally enforceable judgment lifting an attachment is overturned on appeal. The starting point is that the attachment then revives, "on the understanding that changes in the legal status of the attached asset in the period between the lifting and the reversal must be respected" (ground 3.3.4). Where the attached asset is transferred to a third party after the attachment but before the lifting, that third party obtains, through the lifting, the unencumbered ownership, and the attachment does not revive in respect of that asset (grounds 3.3.3-3.3.5).

The practical lesson cuts both ways. For the attached party it means that a lifting obtained in preliminary relief proceedings offers no definitive certainty while the appeal is pending: the attachment can come back. For the third-party acquirer the reverse holds — a transfer that took place before the lifting is respected and protects the acquirer against revival.

Attachment in execution: lifting only where there is abuse of powers

For an attachment in execution the starting position is fundamentally different. The executing party already holds a title and in principle has the right to proceed to recovery without further judicial intervention. The court comes into the picture only where there is abuse of powers (Section 3:13 DCC). The Court of Appeal of Amsterdam put it sharply in the face-masks case (7 November 2025): the court "will order the (partial) lifting of an attachment in execution only where the executing party, through the execution, commits an abuse of powers" (ground 4.6). Notably, the court there corrected the provisional relief judge, who had wrongly applied the balancing-of-interests test of Section 351 DCCP.

The classic test comes from Ritzen/Hoekstra (Supreme Court 22 April 1983). A stay of enforcement can be ordered only where the executing party, having regard also to the interests of the party against whom execution is sought, "has no interest worthy of protection in reasonableness" in the execution. The Supreme Court named two examples: the judgment to be enforced is manifestly based on a legal or factual error, or the execution will, on the basis of new facts, "manifestly create a state of emergency on the side of the party against whom execution is sought" (ground 3.2). Those two cases are not an exhaustive list, but illustrations of the broader abuse standard.

That is borne out by the case law of the lower courts, where the abuse test runs consistently along disproportionality. In a case before the District Court of Rotterdam (14 December 2023) a former employee had, for a residual debt of at most a few thousand euros, levied attachment on five vehicles worth around two hundred thousand euros, including a Porsche of €75,000. That "disproportion between those measures (…) and the amount of the claim" amounted to abuse (grounds 5.4-5.5). The attachment was lifted, albeit on the condition that the judgment debtor provided security for the amount actually due. The line is thus drawn at the relationship between means and end, not at the question whether anything is owed at all.

The other side is shown by the Court of Appeal of Amsterdam (31 March 2015). There the judgment debtor argued that the execution would yield almost nothing because the mortgage debts far exceeded the execution value. Insufficient, the court held: there is abuse only "where it is established in advance that the execution will not lead to any distribution", and "the mere uncertainty whether the attachment will ultimately lead to a distribution is not sufficient" (ground 3.2). The residential interests of the judgment debtor and his family did not create a state of emergency either, not least because it was not a new fact relative to the judgment to be enforced.

Suspend or lift? The test after the Supreme Court judgment of 20 December 2019

Here lies the subtlest layer. The judgment of Supreme Court 20 December 2019 recast the test for suspending the enforcement of a provisionally enforceable decision. Since then the rule is: where an appeal has been lodged against that decision or is still open, enforcement is suspended on the basis of a balancing of interests (ground 5.8 under a-d), not on the basis of the abuse test. The starting point is that a judgment should be enforceable pending the higher appeal; departure is possible where the interest of the party ordered in maintaining the existing situation carries greater weight. Only once the decision has become res judicata, and is therefore final, does the old abuse test of Ritzen/Hoekstra apply "in full" (grounds 5.7.1 and 5.8 under e).

That creates a tension the practitioner must keep firmly in view. For suspending the enforcement of the judgment itself, the balancing of interests applies after 2019 as long as an appeal is pending. But for lifting an attachment in execution the lower courts apply — even where an appeal is pending — the abuse test of Section 3:13 DCC, as the face-masks case of 2025 illustrates. The distinction between "suspending the execution of the judgment" and "lifting the attachment" is therefore not merely terminological; it determines which test the court applies.

That the choice between suspending and lifting matters is shown by the case concerning ING's attachment on a pension (Court of Appeal of Amsterdam 20 September 2022). On the basis of a notarial mortgage deed — a title within the meaning of Section 430 DCCP — ING had levied an attachment in execution as third-party garnishment on the pension of a former client, for a residual debt whose limitation was uncertain. The court found abuse of powers: the judgment debtor could no longer pay his fixed costs, while ING had for more than ten years barely pursued collection and had thereby itself taken the risk that the claim would go unpaid (grounds 4.28-4.29). Even so, the attachment was not lifted but the execution suspended until the judgment on the merits — a lifting, after all, has "no retroactive effect" and would not restore what had already been collected (grounds 4.6, 4.30). A party that chooses the wrong remedy does not get what it needs.

Order to lift, or lift directly?

There is one further choice that is easily overlooked: the manner in which the lifting is pronounced. Section 705(1) DCCP gives the provisional relief judge the power to lift the attachment himself. Alternatively, he may order the attaching creditor to lift it, usually reinforced with a penalty payment and an order to cancel the registration in the public registers. Both techniques appear in the judgments analysed: in Groningen and Amsterdam the provisional relief judge lifted the attachments himself, whereas the district courts of Limburg and Rotterdam ordered the attaching creditor to lift them on pain of a penalty payment.

The difference is not cosmetic. Where the court lifts the attachment itself, the attachment lapses in law with the judgment. The District Court of Amsterdam reasoned along that line: it "lifts the attachments by this judgment, so that there is no cause to order [the creditor] to do so — on pain of penalty payments" (ground 4.11).

Yet law and fact do not always run in step here. A judgment lifting an attachment has its legal effect, but the factual unwinding often lies in the hands of a third party. A bank or other third-party garnishee, in practice, not infrequently releases the attached funds or goods only after the bailiff who levied the attachment has given an express, additional instruction to that effect — a caution prompted by the liability risk the third party runs if it pays out wrongly. Much the same applies to the cancellation of an attachment on registered property: that requires a separate act in the public registers. In those cases it can be precisely useful to seek, alongside or instead of the lifting, an order that the attaching creditor cooperate in the factual lifting, if necessary on pain of a penalty payment. The penalty payment is then no superfluous frill, but the means to bridge the gap that an attachment discharged in law disappears in practice only once the attaching creditor takes the steps required for it.

What does this mean in practice?

For anyone seeking to challenge an attachment, the nature of the attachment determines the strategy. Against a prejudgment attachment it pays to press both on the lack of merit of the claim and on the balancing of interests: the interests alone may already suffice, as the Groningen case showed, provided the party's own interest is concrete and substantiated and does not remain stuck in loose documents. For a monetary claim, offering substitute security — if need be in the form of an undisputed counterclaim — is an independent and often underused route. Against an attachment in execution the only serious avenue is abuse of powers: showing that the size of the attachment bears no relation to the debt, or that the execution places the judgment debtor in an acute state of emergency. And even then the follow-up question is which remedy is sought: lifting or suspension.

For the attaching creditor the same judgments carry a warning. A prejudgment attachment is a temporary measure; a party that leaves the main action on the parked docket risks losing the attachment on the balancing of interests. A party that ties up a multiple of the debt in assets for a small claim risks the court branding the measure excessive and — in execution — an abuse. And a party that leaves an enforcement title unused for years may, on resuming, run into both limitation and abuse of powers. Proportionality and diligence are the key notions on both tracks.

Frequently asked questions

What is the difference between lifting a prejudgment attachment and an attachment in execution?

For a prejudgment attachment (Section 705 DCCP) the provisional relief judge examines whether it is summarily evident that the claim is without merit and balances the mutual interests. For an attachment in execution (Section 438 DCCP) a title already exists; the court lifts the attachment only where there is abuse of powers within the meaning of Section 3:13 DCC. The bar is therefore considerably higher for an attachment in execution.

Can an attachment be lifted where the claim appears sound?

Yes. For a prejudgment attachment the balancing of interests can lead independently to a lifting, even where the claim is not summarily without merit. In the case law analysed, acute financial distress on the part of the attached party, combined with the absence of a concrete recovery interest on the part of the attaching creditor, proved decisive. Prolonged inactivity in the main action can also bring the attachment down.

What does "sufficient security" mean when lifting an attachment for a monetary claim?

The security offered must properly cover the claim (with interest and costs) and the creditor must be able to take recovery from it without difficulty (Section 6:51(2) DCC). Equivalence to the attachment is not required. A bank guarantee is the usual form, but the case law accepts that leaving an undisputed counterclaim unpaid can also serve as adequate substitute security.

Cited case law

Supreme Court

Courts of Appeal

District Courts

Juriaan de Vries — lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also