Standing Surety for Another Person’s Debt under Dutch law

Published on 25 November 2025 · Last updated 27 October 2026

Standing surety (borgtocht) under Dutch law means that you undertake towards a creditor to perform another person’s obligation, usually to pay its debt (Article 7:850(1) Dutch Civil Code). The guarantor only has to pay once the principal debtor has failed to perform (Article 7:855(1)), and the surety depends on the principal debt it secures.

This page is for foreign suppliers, lenders and landlords that ask a Dutch director or parent company to guarantee a Dutch customer’s debts, and for foreign businesses asked to give such a guarantee. It explains what a Dutch surety covers, which formalities protect private guarantors, when you can call on the guarantor and which law applies to a cross-border guarantee.

What is a surety under Dutch law?

A surety is a contract between the guarantor and the creditor in which the guarantor undertakes to perform an obligation that a third party, the principal debtor, has or will have towards the creditor (Article 7:850(1) Dutch Civil Code). The principal debtor does not need to know about it (paragraph 2).

The surety is accessory: it depends on the obligation it secures (Article 7:851(1)). It can also cover future obligations, but only insofar as they are sufficiently determinable (paragraph 2), for example “all amounts owed under the supply agreement of 1 March”. The rules on joint and several obligations apply, unless the surety title deviates from them (Article 7:850(3)).

A surety is different from an independent guarantee in which the guarantor promises to pay on first demand, regardless of the underlying debt. Which of the two a document is depends on its wording and the intention of the parties. Foreign creditors often use the word “guarantee” for both, so state expressly which one you mean.

Which formalities protect a private guarantor?

Extra protection applies only to a natural person who gives the surety outside his profession or business (Article 7:857 Dutch Civil Code). A director who is, alone or together with fellow directors, the majority shareholder of the Dutch BV or NV, and who guarantees for the normal business of that company, does not get this protection.

Where the protection applies, the rules are mandatory (Article 7:862):

If the amount of the principal debt is not fixed when the surety is given, the surety is valid only up to an agreed maximum amount in money (Article 7:858(1)).
The surety can be proved against the guarantor only by a document he has signed, unless he has already paid (part of) the debt (Article 7:859(1)-(2)).
The private guarantor is not bound insofar as the surety would be more onerous than the principal debtor’s obligation (Article 7:860).
A surety for future obligations can be terminated at any time if it has no fixed duration, or after five years if it has (Article 7:861(1)).
The same rules apply to a comparable undertaking by such a person to pay if a third party does not perform (Article 7:863).

A married guarantor also needs the consent of his spouse for a surety given outside the normal course of his profession or business; the law prescribes no form for that consent, but obtain it in writing so you can prove it (Article 1:88(1)(c) and (3) Dutch Civil Code), unless he is a director and majority shareholder acting for the normal business of the BV or NV (paragraph 5). This applies whatever law governs the matrimonial property, if the spouse lives in the Netherlands (paragraph 7). Without consent, only the spouse can annul the surety, subject to protection of a creditor acting in good faith (Article 1:89(1)-(2)). Ask for the spouse’s signature when in doubt.

What makes a business surety valid and enforceable?

Between businesses, Dutch law sets no form for a surety; it can be agreed in writing, by e-mail or orally. In practice, a signed document is essential to prove it, and if the guarantor is a private individual, the surety can only be proved against him by a document he has signed, unless he has already paid (part of) the debt (Article 7:859).

If the principal obligation is not a payment, for example delivery of goods, the surety covers the resulting claim for damages in money, unless expressly agreed otherwise (Article 7:854). Describe precisely which debts are covered, up to which amount and for which period.

When can a creditor call on a Dutch guarantor?

Only after the principal debtor has failed to perform (Article 7:855(1) Dutch Civil Code). A creditor that gives the principal debtor notice of default must at the same time inform the guarantor (paragraph 2). The creditor does not first have to enforce against the principal debtor’s assets.

The guarantor can raise the principal debtor’s defences concerning the existence, content or due date of the debt (Article 7:852(1)), and may suspend payment as long as the principal debtor may do so (paragraph 3). Once the claim against the principal debtor is time-barred, the surety lapses (Article 7:853).

Statutory interest is owed by the guarantor only for the period in which the guarantor itself is in default, unless the principal debtor was in default without notice because the debt arose from a tort or concerns damages (Article 7:856(1)). The costs of legal action against the principal debtor are recoverable from the guarantor only if the guarantor was told in time of the intended action and could have avoided them (paragraph 2). As a foreign creditor, notify the guarantor in writing at every step.

When does a surety end?

A surety ends when the secured debt has been paid, when an agreed term expires, or when the parties agree to end it. For a business surety for future debts, the surety document governs termination; if it is silent, a surety of indefinite duration is as a rule terminable, subject to the requirements of reasonableness and fairness (HR 2 February 2018, ECLI:NL:HR:2018:141). For a private guarantor, Article 7:861 Dutch Civil Code allows termination by law.

After termination, the surety continues for obligations that had already arisen (Article 7:861(2)). A private guarantor is also not bound for future damages the creditor could have prevented by reasonable supervision, or for obligations arising from a transaction the creditor entered into without being obliged to after learning that recovery from the principal debtor had become much less likely, unless the guarantor expressly agreed to it or it could not be postponed (paragraphs 3 and 4).

Can the guarantor recover the payment from the principal debtor?

Yes. A guarantor that pays the creditor has a claim against the principal debtor for the full amount of principal, interest and costs it had to pay (Article 7:866(1) Dutch Civil Code). Interest for its own default and costs that only concern the guarantor are excluded (paragraph 2).

The creditor must refrain from conduct that undermines the rights the guarantor may expect to acquire when it pays, such as releasing other security (Article 6:154). In practice, however, the principal debtor is often insolvent by the time the guarantor pays, which is exactly the risk the creditor wanted to pass on to the guarantor.

Which law applies to a cross-border surety?

The law the parties choose (Rome I Regulation, Article 3(1)). Without a choice, a surety is as a rule governed by the law of the country where the guarantor has its habitual residence, because the guarantor performs the characteristic obligation (Article 4(2)), unless the contract is manifestly more closely connected with another country (Article 4(3)).

That matters for a foreign creditor: a guarantee from a Dutch director or Dutch parent company may be governed by Dutch law even if your supply contract is governed by your own law. Choose the law expressly in the surety document and combine it with a jurisdiction clause. See our page on choosing Dutch law in international contracts. Check also who signs for a Dutch parent company: see unauthorised conclusion of a contract under Dutch law.

What should a foreign creditor check before accepting a Dutch surety?

A surety is only as good as its drafting and the guarantor’s assets. Before you rely on one, check:

whether the guarantor is a business, a director-majority shareholder or a private individual (Article 7:857), and if private, that a maximum amount is stated and the guarantor signs;
whether a married private guarantor’s spouse must consent (Article 1:88(1)(c));
that the secured debts are described precisely, including future debts (Article 7:851(2));
whether you want an accessory surety or an independent guarantee on first demand, and that the wording reflects that;
the governing law, the competent court and who signs for a guarantor company.

Example: a director guarantees his company’s supply debts

Suppose (illustration) a German supplier delivers to a Dutch BV on 60-day payment terms and asks its managing director, who owns all shares, to guarantee the BV’s debts by e-mail. The BV later stops paying.

Because the director is the sole shareholder and guaranteed for the BV’s normal business, the protective rules of Articles 7:857-7:864 and the spouse’s consent under Article 1:88 do not apply. Once the BV fails to pay within the 60 days, it is in default without notice (Article 6:83(a)); if the supplier nevertheless sends the BV a notice of default, it must inform the director at the same time (Article 7:855(2)). It can then claim from the director, who can raise the BV’s defences, such as a complaint about defective goods (Article 7:852(1)). A signed guarantee stating the governing law and maximum amount would have made the claim simpler.

When should you involve a Dutch lawyer?

Involve a Dutch lawyer before you accept a surety for a significant credit, and as soon as a Dutch debtor stops paying: the notice to the guarantor, the description of the secured debt and the guarantor’s status decide whether you can collect. MAAK Advocaten drafts and reviews sureties and guarantees for foreign companies and acts in collection proceedings before the Dutch courts in first instance and on appeal. Read more about our work as a contract lawyer in the Netherlands.

Frequently asked questions about surety under Dutch law

Does a Dutch surety have to be in writing?

Between businesses, no form is required, although a signed document is the only practical proof. A private guarantor can only be held to a surety proved by a document he has signed, unless he has already paid part of the debt (Article 7:859 Dutch Civil Code).

Must the creditor first sue the principal debtor?

No. The guarantor must pay once the principal debtor has failed to perform (Article 7:855(1) Dutch Civil Code). The creditor must, however, inform the guarantor when it gives the principal debtor notice of default (paragraph 2).

Does a Dutch director’s guarantee need his spouse’s consent?

Not if he is the director and, alone or with fellow directors, the majority shareholder, and the guarantee serves the normal business of the BV or NV (Article 1:88(5) Dutch Civil Code). Other private guarantors generally need their spouse’s consent; ask for it in writing.

Can a guarantor terminate the surety?

A private guarantor can terminate a surety for future debts at any time if it has no fixed term, or after five years if it has; existing debts remain covered (Article 7:861 Dutch Civil Code). For business guarantors, the surety document decides, and if it is silent general Dutch contract law applies.

Which law governs a guarantee given by a Dutch company?

The law chosen in the guarantee. Without a choice, as a rule the law of the country where the guarantor has its habitual residence applies (Article 4(2) Rome I Regulation), so usually Dutch law for a Dutch guarantor.