If you have stood surety for a loan, you can be held liable when the borrower fails to meet their obligations. That does not mean every amount claimed is automatically owed. First, the suretyship, the principal debt, the conditions for calling on the surety and any statutory protection must be examined. Particularly for a private surety, the maximum amount, the supporting documents and the consent of a spouse can be decisive.
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A suretyship often arises out of trust. You help a child, partner or business contact obtain financing. Or, as a business owner, you co-sign a loan to your bv. Years later a letter arrives in which the lender demands payment from your private assets. The original risk then suddenly becomes very real.
This blog helps you determine which questions need to be answered first. That order is also important for a private lender who wants to call on a surety: a signed document alone does not yet tell you whether, when and for what amount recovery is possible.
What is a suretyship in legal terms?
Under a suretyship, a surety undertakes towards a creditor to perform an obligation of another debtor. That other person or company is the principal debtor. The statutory rules are set out in Book 7 of the Dutch Civil Code (BW), Title 14.
The suretyship is linked to the principal debt. If the loan does not exist, has already been repaid or is only partly due, that in principle carries through into the claim against the surety. That is why you must read not only the deed of suretyship, but also the loan agreement, the general terms and conditions and the payment records.
The heading of a document is not always decisive. Terms such as guarantee, joint and several co-debtor and suretyship are used interchangeably in practice. The content and circumstances determine the legal classification. An independent guarantee may work differently from a suretyship. So have it established which obligation you actually entered into, before relying on the label above the signature.
When may the creditor call on the surety?
Article 7:855 of the Dutch Civil Code sets out the basic rule that the surety is not obliged to perform before the principal debtor has defaulted. So check which payment was missed, when it was due and whether the lender validly accelerated the loan.
The principal debtor does not always have to be declared bankrupt first. Nor is there a general rule that a creditor must first enforce against all the borrower’s assets before calling on a surety. The statutory rules and the agreements made must be assessed together. A defence that merely states that the company still owns machinery is therefore often insufficient.
Ask for the letter calling in the loan sent to the borrower and an up-to-date statement. If there is a dispute about the termination of the credit, that may also be relevant to the surety. The points to look out for are set out in our blog about a bank or lender calling in the loan.
Are you a private surety or a business surety?
The law provides additional protection for suretyships entered into outside the course of a profession or business. This may include someone who stands surety for a family member, but also someone with a business background. Merely holding shares or the mention of a company in the deed does not settle the question.
Article 7:857 of the Dutch Civil Code contains a specific exception for certain directors who, alone or together with fellow directors, hold the majority of the shares and act for the purposes of the company’s normal business operations. The precise position of the director and the purpose of the financing are therefore relevant.
A loan for ordinary business activities and exceptional financing in an emergency may be assessed differently. Gather the shareholders’ register, your position as director on the date of signing, the financing application and information about the intended use of the funds. The classification determines which statutory provisions provide mandatory protection and to what extent they could be departed from by contract.
Which maximum amount applies to your liability?
In a private suretyship, a maximum amount must have been agreed if the amount of the principal obligation was not yet fixed when the suretyship was entered into. This applies, for example, to a revolving credit or a suretyship for future obligations. The wording “for all present and future debts” therefore deserves particular attention.
A stated maximum is not necessarily the same as the total final amount including all interest and costs. Article 7:858 of the Dutch Civil Code makes an exception for certain interest and costs. Which items can be claimed in addition to the maximum must be checked against the statutory rules, the deed and the moments at which the obligations arose.
Also check whether earlier payments permanently reduce the maximum or whether continuing cover was agreed. A limit of €25,000 can work out differently in different contracts. So ask for a calculation that shows the principal, payments, interest, costs and any new drawdowns separately. A total amount without a timeline is not enough to assess your risk.
Has the suretyship been properly recorded?
For a private surety, Article 7:859 of the Dutch Civil Code contains a special rule of evidence: as against the surety, the suretyship is in principle proven by a document signed by him. The law makes an exception to this where the surety has already performed in whole or in part. A payment may therefore mean more than merely a reduction of the debt.
With digital signing, it must be examined what exactly was signed, how identity was verified and which documents accompanied the signature. A single scan without attachments may be a reason to request the complete signing file. That does not mean that digital signing as such is invalid.
Also check the date and version of the terms and conditions. A lender cannot, without substantiation, rely on a later document as if it already applied at the time of signing. Conversely, a later confirmation or amendment may have legal consequences. So also keep emails about the extension, increase and restructuring of the loan.
Was your spouse’s consent required?
For a suretyship, Article 1:88 of the Dutch Civil Code may mean that a spouse’s consent is required. There are exceptions, including for certain acts in the course of a business. It is therefore wrong to assume that every business suretyship falls outside the consent rule, or that every missing partner signature automatically releases the surety.
If consent was required and is missing, the other spouse may, subject to conditions, invoke annulment. The right to do so, its limitation period and any protection of the other party must be assessed separately. The surety cannot simply rely on the statement that his partner knew nothing about it.
The marital situation at the relevant time also counts. A prenuptial agreement does not automatically make the consent question irrelevant. Corresponding rules may apply to a registered partnership. Unmarried cohabitation is yet another situation. For the statutory basis, see Articles 1:88 and 1:89 of the Dutch Civil Code.
Which defences can you investigate?
Start with the principal debt: was the money advanced, to the right person, and is the outstanding balance correct? Have payments been processed? Was repayment already due? Under Article 7:852 of the Dutch Civil Code, a surety may in principle use the defences of the principal debtor that relate to the existence, content or time of performance of that debtor’s obligation.
There may also be defences arising from the suretyship itself. Think of an expired term, a narrow description of the loan covered, a maximum or missing required consent. Sometimes it is relevant what information the lender gave in advance and whether a special duty of care existed. That does not produce a general rule that a bank must waive every suretyship once the risk materialises.
Distinguish between a complete defence and a correction of the amount. If only €3,000 in costs is disputed, it does not follow that the €30,000 suretyship lapses entirely. A targeted response makes clear what is acknowledged, what is disputed and what cannot yet be assessed.
What if the loan was later amended?
A suretyship can lie dormant for years while the financing changes. The loan is increased, the term extended or the original borrower replaced. Then examine whether the change falls within the existing suretyship or required fresh consent.
Also watch out for released security. If a lender gives up a right of pledge, for example, that may affect the surety’s ability to seek recourse after payment. Whether this gives rise to a defence or a claim for damages depends on the statutory obligations, contractual agreements and actual prejudice.
In a restructuring, ask for all relevant annexes. A document presented as an administrative confirmation may contain broader cover, a new maximum or a waiver of defences. Nor does the end of your position as director automatically mean that a suretyship you gave earlier has ended. Check the termination provisions and any written release.
What happens if you pay as surety?
After payment, the surety may, subject to conditions, acquire a right of recourse against the principal debtor. The transfer of the creditor’s rights may also play a role. The scope and exercise of those rights require a separate assessment. Moreover, a right to reimbursement is no guarantee that the money can actually be recovered.
Before paying, enquire about the status of the loan and discuss the intended payment with the principal debtor. They may have defences or proof of payment that you are not yet aware of. Paying unnecessarily can complicate the later relationship. Record which debt the payment relates to and what balance remains afterwards.
If there are several sureties, a mutual obligation to contribute may arise. That allocation does not follow automatically from the number of people who signed. Contractual allocation of the burden, maximum amounts and other security may be relevant. So examine your position towards the lender, the borrower and any other sureties at the same time.
Practical example: a parent as surety for a business loan
A parent signs for a loan of €80,000 to a child’s business. The deed of suretyship states a maximum of €20,000. Two years later the lender claims €24,500 from the parent. The business is in arrears, but has also made some payments that are not clearly shown in the demand.
The first question is not whether the parent was keen to help the business. What is needed is the signed deed of suretyship, the loan agreement, the payment history and the calculation of the €24,500. It is then examined whether private-surety protection applies, which items may fall outside the maximum and whether a spouse’s consent was required.
This is a fictitious example, not a prediction of an outcome. It shows why “you signed, so you must pay” contains too little information. It may result in payment of a verified amount, an arrangement or a substantive defence. That choice follows from the file.
How do you respond to a demand addressed to the surety?
First note the response deadline and the next step announced. Keep the envelope and email details. Then request in writing the deed, the terms and conditions, the grounds for calling in the loan and a statement of the balance. State specifically which parts you dispute and which documents are missing. A request for information does not automatically suspend a procedural or payment deadline.
A first response can remain businesslike: “I would like to receive the complete suretyship and a statement of the principal debt, payments, interest and costs. Without these documents I cannot verify your claim. For the time being, I dispute that the total amount you are claiming is owed, and I reserve my rights and defences.” Adapt this text to the facts; a standard sentence is no substitute for a substantive assessment.
If you receive a summons or there is a threat of attachment of your home or account, a prompt procedural assessment is needed. Do not assume that an ongoing exchange of emails puts the proceedings on hold. The same applies when you are negotiating a payment arrangement: have it recorded explicitly whether further measures will be temporarily suspended.
Which documents should you take to a lawyer?
Put together one file containing the deed of suretyship, the loan agreement, the general terms and conditions, all amendments and the current demand. Add bank statements of payments made by you or the principal debtor. State which security was provided and whether it has already been enforced.
In addition, write down briefly why you signed at the time, what information you received and who was present at the meetings. With a business background, your position as director and shareholder on the date of signing matters. Where partner consent may be relevant, the form of the relationship, relevant dates and documents received are needed.
A clear timeline saves a lot of digging. Also make clear what you want to achieve: full rejection of the claim, verification of the amount, limitation of measures or an affordable arrangement. Sometimes the surety is legally liable, but a well-substantiated proposal offers better prospects than proceedings based on a weak defence.
Reaching an arrangement without forgetting your right of recourse
If you are considering an arrangement as surety, do not discuss only the amount with the lender. Also ask what the payment means for the principal debt and any claim you may have against the borrower. A discount for the surety and debt forgiveness for the principal debtor are different agreements.
Have it recorded which obligation you are paying for, which part is thereby discharged and which documents you will receive. If rights or security are relevant for later recovery, it must be clear how they will be dealt with. A general clause stating that all parties involved have no further claims against one another may restrict your position further than intended.
Inform the principal debtor of the intended settlement and ask about any known defences or recent payments. This reduces the risk that you pay an amount that has already been reduced or can be disputed on the merits. Keep the response in your file.
Finally, assess whether recourse can yield anything in practice. If the borrower has no assets to recover from, payment may remain a permanent financial burden for you. Factor that into your budget and negotiating position. A legal right of recovery should not be treated as a certain future receipt when the financial facts provide no basis for it.
Have you been called on as surety? See our approach to loan disputes; if the lender itself is the opposing party, see dispute with a bank or lender.
Related topics
Frequently asked questions about suretyship for a loan
Does the bank first have to have the borrower declared bankrupt?
No, that is not a general requirement. It must, however, be checked whether the principal debtor has defaulted and whether the conditions for calling on the surety have been met. The contract may contain additional agreements on the order of recovery.
Am I released from my suretyship after stepping down as director?
Not automatically. An existing suretyship can continue after your position or shareholding ends. The wording, any termination and a written release are decisive in assessing further liability.
Can my partner challenge a suretyship?
That is possible, subject to conditions, if required consent is missing. There are exceptions and time limits. So have it assessed whether Article 1:88 of the Dutch Civil Code applies and who can invoke annulment in time.
May interest be charged above the stated maximum?
Certain interest and costs may sometimes be owed in addition to the maximum. That does not follow from every invoice from the lender. The statutory rules, the contract wording and the calculation must be checked item by item.
Can I reclaim my payment from the borrower?
A right of recourse may arise after a payment that was owed. Whether you actually get money back also depends on the financial position of the principal debtor. Keep proof of payment and agreements on the settlement of the principal debt.
Can a private lender also call on a surety?
Yes, suretyship is not reserved for banks. A private individual or business owner who has lent money may also have rights under a valid suretyship. The protection of the surety and the conditions for calling in the debt remain relevant.
Have your position as surety or lender assessed
Are you being called on as surety, or do you want to invoke a suretyship as a non-bank lender? Bring the deed, the loan agreement and the latest demand. Via contact with Arslan & Arslan Advocaten you can submit your dispute. An assessment starts with the scope of the undertaking, the correct balance and the defences that can actually be used in your situation.
Written by Onur Arslan, attorney at Arslan Advocaten and responsible within the firm for the financial practice: credit registrations, loans and disputes with lenders. Registered in the specialisation register of the Netherlands Bar for employment law and personal injury. Content reviewed on 12 September 2026 against the statutory text on wetten.overheid.nl and the cited judgments on rechtspraak.nl.
Further reading on this topic
- Business loan not repaid: what can you do?
- Business loan with a negative BKR registration
- Limitation period for a private loan and requesting repayment in time
