BV-ն ձևավորման փուլում. ո՞վ է պատասխանատու գրանցումից առաջ և հետո։

A B.V. in formation (B.V. in oprichting, or B.V. i.o.) does not yet exist as a legal person, so the person who signs a contract on its behalf is personally and jointly liable for it under Article 2:203 of the Dutch Civil Code (BW). That liability ends only when the incorporated company ratifies the contract, unless the counterparty expressly agreed otherwise; and after incorporation, directors remain liable under Article 2:180 BW until the company’s registration in the trade register has been filed.

հոլանդական կորպորատիվ իրավունք lets founders do business in this phase, but it places the risk on them. This article explains both liability windows, how ratification works and how you limit your exposure as a founder or as a counterparty.

When does a B.V. acquire legal personality?

A B.V. comes into existence when a civil-law notary executes the notarial deed of incorporation, as required by Article 2:175 BW. Before that moment there is no company that can hold rights, own assets or incur debts.

The deed contains the articles of association (statuten), which must state at least the company’s name, its registered office in the Netherlands and its objects (Article 2:177 BW). Since the flexible B.V. rules of 1 October 2012, there is no minimum share capital of €18,000 and no authorised capital is required; at least one share with voting rights must be held by someone other than the company itself. Contributions in kind must be described and valued in the way set out in Article 2:204 BW. Our guide from idea to BV covers the practical sequence.

You therefore face two separate windows. Before the deed, Article 2:203 BW applies to anyone acting for the future company. After the deed but before registration, Article 2:180 BW applies to the directors.

Who is liable for contracts signed before incorporation?

The person who acts on behalf of the B.V. in formation is jointly and severally liable for the contract until the company ratifies it after incorporation (Article 2:203(2) BW). If several people acted, each of them is liable for the full amount.

A contract signed for the future company binds the company only if it ratifies it, expressly or tacitly, after incorporation (Article 2:203(1) BW). If the B.V. is never incorporated, nobody can ratify and the liability of the person who signed becomes permanent.

Always sign as “[name] B.V. in oprichting” or “[name] B.V. i.o.”. If you sign in your own name without making clear that you act for a company in formation, the contract is likely to be treated as your personal contract, which the company cannot take over by ratification.

How does ratification work?

Ratification (bekrachtiging) is the company’s statement, after incorporation, that it takes over the contract. It can be express, for example a letter to the counterparty, or tacit, for example when the company pays the rent under a lease signed in the i.o. phase.

Make ratification visible to the counterparty. An internal board resolution that the counterparty never hears about leaves room for argument about whether the company really took over the contract. A written confirmation sent to each counterparty right after incorporation removes that doubt.

The company that is incorporated must also be the company that was announced. If the name, objects or shareholders differ substantially from what the counterparty was told, the counterparty can argue that the incorporated B.V. is not the company it contracted with, and the person who signed remains liable.

Are you still liable after ratification?

Yes, in one situation. If the company does not perform the ratified contract, the persons who acted for it are jointly and severally liable for the counterparty’s loss if they knew or should reasonably have known that the company could not perform (Article 2:203(3) BW).

That knowledge is presumed if the company is declared bankrupt within one year of incorporation. The founder must then prove that the company’s inability to pay could not be foreseen, for example with a realistic business plan and cash-flow forecast drawn up at the time.

The statutory exception for a contrary agreement appears only in paragraph 2. A clause that excludes the founder’s liability until ratification does not protect against this paragraph 3 liability for ratifying contracts the company cannot perform.

Can you exclude personal liability by contract?

Yes, but only expressly and only for the pre-ratification liability. Article 2:203(2) BW applies “unless expressly agreed otherwise” for that specific legal act.

A general reference in your terms and conditions is a weak basis. Put a clause in the contract itself stating that the counterparty looks only to the future B.V. and waives any claim against you personally, including if the company is never incorporated or does not ratify. The counterparty must agree to that clause.

What happens between the notarial deed and registration?

Once the deed has been executed, the B.V. exists, but the directors must register it in the trade register of the Chamber of Commerce (KVK) and file an authenticated copy of the deed (Article 2:180(1) BW). Usually the notary files this registration directly with the KVK.

Until the application for registration and the copy of the deed have been filed, each director is jointly and severally liable, alongside the company, for every legal act by which he binds the company (Article 2:180(2) BW). This applies whether or not the counterparty knew that the registration was still pending.

Ask the notary to file the registration on the day of incorporation and to confirm that it has been done. Postpone large commitments until you have that confirmation. A director who leaves the filing to someone else is not excused if it is late.

Ի՞նչ պետք է ստուգեք որպես հիմնադիր կամ տնօրեն։

• Every contract, quote and email states “[name] B.V. i.o.” and shows that you act for the company in formation.
• Important contracts contain an express clause excluding your personal liability until ratification.
• The incorporated B.V. matches the name, objects and shareholders you announced to counterparties.
• The company sends a written ratification to each counterparty right after incorporation.
• Before ratifying, the board checks that the company can perform the contract, given the one-year bankruptcy presumption.
• The notary has confirmed filing of the trade register application before you enter into large commitments.

Ի՞նչ պետք է ստուգեք որպես հակառակ կողմ։

• Is the contract clearly concluded with a B.V. in formation, and who signs for it?
• Is there a clause excluding the signer’s personal liability, and do you want to accept it?
• Has the notary scheduled the incorporation, and do you have the draft articles of association?
• Do you receive a written ratification from the B.V. shortly after incorporation?
• Is the B.V. registered in the KVK trade register before you deliver on credit?

As a counterparty you can always claim from the person who signed until ratification. Bear in mind that this claim is only worth as much as that person’s private assets.

What can we do for you with a B.V. in formation?

Our corporate lawyers in Eindhoven և Amsterdam advise founders, directors and their counterparties during incorporation.

• Մենք կազմում ենք կանոնադրությունը և համաձայնեցնում ենք գրանցումը քաղաքացիական իրավունքի նոտարի հետ։
• We draft pre-incorporation contracts with a clear ratification clause and, where possible, an exclusion of personal liability.
• We prepare the board resolution and the written ratification letters to counterparties.
• We assess whether the company can perform the contracts before it ratifies them.
• We defend founders and directors against claims under Articles 2:203 and 2:180 BW, or bring those claims for counterparties.

Ամփոփում

• A B.V. in formation is not a legal person; whoever signs for it is jointly and severally liable until ratification.
• Ratification can be express or tacit, but a written confirmation to the counterparty is the safest route.
• Founders remain liable after ratification if they knew the company could not perform; this is presumed on bankruptcy within one year.
• Liability until ratification can be excluded, but only by an express agreement for that contract.
• Directors are also liable until the trade register application and the copy of the deed have been filed.

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