De patronaatsverklaring: rechtsvergelijkende en internationaal privaatrechtelijke beschouwingen over de aansprakelijkheid vanwege een geruststellende verklaring

The patronaatsverklaring, a legal concept, which originated in legal practice and has not been defined in the law, has become a common feature in modern-day legal transactions. In this study, the patronaatsverklaring is used as an umbrella term for all reassuring statements issued by a patroon (often a parent company) with the purpose of inspiring confidence in the financial state of a company (the gepatroneerde company, often a subsidiary company). These statements may serve three different purposes.

1. The statement may be issued to a bank, as a personal security for the granting of credit to the gepatroneerde company (the principal debtor), or the maintenance or increase thereof.

2. When the continuity of a company is at stake, a patroon may issue a reassuring statement to the company in question, so that the annual accounts of this company can (still) be prepared and audited on a going-concern-basis.

In addition, a patroon may issue a general reassuring statement that does not address specific persons, to inspire confidence in the gepatroneerde company.
Dutch case law and literature have shown an increasing interest in patronaatsverklaringen in recent years, but an extensive study which clarifies the potential liability resulting from a patronaatsverklaring under Dutch law has not been available. This study aims at filling this gap.

The central question in this study is: what contractual or delictual liability may ensue from a reassuring statement (patronaatsverklaring)? This study is divided into three parts. Because the content of patronaatsverklaringen may vary substantially, part I provides a classification into three categories which are illustrated by providing examples of frequently occurring reassuring statements originating from case law, literature and legal practice. Part II focuses on the following subquestions:

How is a patronaatsverklaring characterised?
How is a patronaatsverklaring interpreted?
For what can a patroon be sued in court on the basis of a patronaatsverklaring?
These subquestions will be answered according to German, English and Dutch law. German law provides insight into the legal questions posed by a patronaatsverklaring. It follows an almost deductive line of reasoning based on the assumption that certain promises create enforceable obligations. English law follows a more inductive line of reasoning, which inclines toward a case-oriented result.Under Dutch law, the position of a patronaatsverklaring is less clear,but contractual (a patronaatsverklaring may be characterised as a unilateral juridical act) or delictual liability is certainly possible. As the patronaatsverklaring frequently occurs in a cross-border context, the fourth subquestion, which is dealt with in part III, is:

How is the Dutch court to determine whether it has jurisdiction with regard to a cross-border conflict relating to a patronaatsverklaring, and how is it to decide which law is applicable?
Because the outcome of these questions of Private International Law may be unpredictable, parties are well advised to include a choice of forum and of law in their patronaatsverklaring.

Finally, this study contains a ‘checklist’ with practical key points which may be relevant to map the (possible) legal consequences of a particular patronaatsverklaring.