The impact of Ex officio Review on collection procedures

As an SME entrepreneur, you naturally want your invoices to be paid properly. If a client unexpectedly fails to pay, you can start an amicable collection process to enforce payment without intervention from a judge. Should that also prove unsuccessful, a legal procedure might offer a solution. But what if you submit a claim to the judge and it is (partially) rejected? This can happen due to ex officio review (ambtshalve toetsing), where the judge independently assesses whether the claim complies with the law and is complete. This can lead to problems, especially with private clients, if your terms and conditions are not properly drafted. In this blog, you will read what ex officio review means, what terms must be included in your agreements at a minimum, and how you prevent your claim from being rejected.

What is ex officio review?

Ex officio review means that the judge independently checks whether a claim and the accompanying terms comply with the law and are complete. This is especially important for private clients, because the law offers them extra protection against unreasonable terms. If a judge, for instance, finds that your general terms and conditions are incorrect or certain costs are too high, they may decide to reject the claim in whole or in part. This can mean that you, as an entrepreneur, do not get your money, even if the debtor has not paid the invoice. It may also be that the judge requests additional proof.

When does a judge apply ex officio review?

The judge checks primarily for claims against private individuals whether everything is legally correct. This occurs, among other things, in the following situations:

• General terms and conditions: Are these fair and understandable for consumers and clearly communicated in advance? Note! It is important that you can demonstrate that the client agreed to the general terms and conditions in advance. For example, by including them with a quote and explicitly stating that the terms are applicable. A signature or a 'checkbox' as confirmation of agreement with the terms also ensures your claim stands stronger.
• Collection costs and penalties: Are the collection costs not higher than legally permitted?
• Mandatory law: Does the agreement comply with all rules for consumer protection?
• Sufficient substantiation: Can you demonstrate that the debtor is truly obligated to pay? For example, with a contract or a (signed) agreement.

What terms must be included in an agreement with private individuals at a minimum?

For private clients, it is important to communicate the following matters clearly in your agreement or general terms and conditions:

• Correct business name and address details of your company.
• Characteristics of the products or services (content and delivery).
• Price to be paid (payment obligation).
• When and how a client must pay.
• Costs and procedures in the event of non-payment.
• Return and cancellation terms (right of withdrawal).
• Warranties and service conditions.

If you do not clearly communicate the matters above with your client in advance, you run the risk of your claim being rejected by the ex officio review. The judge then rejects the claim, sometimes before looking at it substantively at all.

Practical example

Imagine you are a gardener and you are going to lay out a garden for your client. You have discussed all agreements regarding the price, duration of the work, etc., clearly with the client in advance. You deliver the garden exactly as agreed, but the client does not pay your invoice. You decide to engage incasso.nl to collect the invoice from your client. However, the client still does not pay, and you want to start a legal collection procedure, as you are completely in your right. Unfortunately, you do not have the agreements with the client in writing, because you discussed this verbally. You delivered the garden exactly as discussed, but you still run the risk that the judge rejects your claim. Following the ex officio review, the judge concludes that you cannot provide the necessary evidence for the agreement.

Another example is an online shop that sells furniture to private individuals. Your general terms and conditions state that clients must pay a 20% penalty for late payment, on top of regular collection costs. A client does not pay on time, and you engage incasso.nl. If the case eventually goes to court, the judge first assesses whether the imposed penalty and costs are justified. Because 20% is higher than legally permitted, the judge decides it does not need to be paid. This means you receive less than expected and potentially incur extra costs.

How do you prevent problems?

To ensure your claims are not unnecessarily rejected, you can take the following measures:

1. Check and update your general terms and conditions: Ensure they comply with the latest legislation.
2. Use clear agreements: Be transparent about payments, costs, and rights. Let your client confirm the agreement!
3. Communicate clearly with your clients: Ensure they know what to expect beforehand.
4. Keep your administration in order: Safely store contracts, invoices, payment reminders, and communication with the client.
5. Engage an expert: A collection specialist can help you make your terms legally watertight.
6. Know your rights and obligations: Immerse yourself in legislation regarding collection cases or get proper advice.

Conclusion

Ex officio review can influence your collection procedure, especially with private clients. By using clear agreements and correct terms, you prevent a judge from rejecting your claim. Ensure that your terms are legally sound and your administration is in order so that you stand stronger if a client does not pay.

Need help or advice?
Do you want to be sure that your collection procedures and general terms and conditions are legally in order? Contact one of our collection specialists and prevent unpleasant surprises!