A court may decide to grant a moratorium on payments to an entrepreneur. This deferral of payment offers the entrepreneur(s) in question some leeway to find a financial solution and avert bankruptcy. A suspension of payments therefore concerns a temporary ‘space’ of a maximum of 1.5 years during which a company must work properly on liquidity. In practice, this is not easy because a kind of curse will rule over the company as soon as the suspension of payments comes into effect. Suppliers and customers become suspicious and quickly ignore the company. This is partly because the provisional suspension of payments is published in the Government Gazette, in (local) media and on websites. Despite good intentions, more than 50% of suspensions of payments still result in bankruptcies. Article 213 of the Bankruptcy Act states that suspension of payments can only be applied to legal entities such as BVs and natural persons (sole proprietorships) who have an independent profession or who run their own business. A suspension of payments cannot therefore be applied to private individuals who are at risk of going bankrupt.
Does your company have difficulty paying immediately due claims, but is it expected that this will be possible in the future? Then you can apply for a suspension of payments. Unlike a bankruptcy petition, no shareholder decision or instruction from the shareholders to the director is necessary. The suspension of payments can be requested by submitting a petition to the court. The petition must be supplemented with a description of the estate, assets and debts, details of creditors and the amounts of their claims. The court expects that you can clearly substantiate why you think the problems can be solved and what time you need to do so. He expects hard facts to make a good judgement, so prepare yourself well for this. Based on this information, the court can determine a period for which the suspension of payments will be granted. For most courts it is not easy to reach an expert decision immediately, which is why a provisional suspension of payments is granted in most cases.
The most unfortunate thing about a suspension of payments is that the court appoints an administrator who will manage and dispose of the company’s assets. In a sense, the administrator’s actions resemble those of the curator in a bankruptcy. In practice, this means that the directors of a company must consult almost every financial transaction with the administrator and obtain permission. The director retains his or her authority for matters such as strategy, marketing, etc.
Final suspension of payment
In order to grant a definitive suspension of payments, the court will hear the request during a hearing. The following are present during this treatment: the director(s), the creditors, the administrator and, if applicable, the Supervisory Judge. During the hearing of the case, the court will ask the creditors whether they accept a deferment of payment. This will then be voted on. If the legally required number of creditors do not agree, the suspension of payments will not be granted. If they do agree, this does not automatically mean that the suspension of payments will be granted. The court wants to be sure that there are future prospects and must have confidence in the director(s). If this is not the case, the suspension of payments will not be granted and the company will soon become bankrupt. If the court has granted a definitive suspension of payments, the director(s) may no longer act independently. If they do this, the administrator can declare these actions null and void.
Creditors cannot make claims during the suspension of payments. After all, the court has granted a deferment of payment to the company. If there are options to pay creditors, this is of course permitted, but in consultation with the administrator. The debts must be paid proportionately, which means that each creditor receives an equal share.
The administrator is almost always an experienced lawyer who has been appointed administrator by the court. This administrator can then be appointed as curator in the event of bankruptcy.