A Practical Guide for Debtors and Creditors

. Introduction

Enforcement instruments such as attachment and forced execution are powerful tools that enable creditors to enforce their civil claims. A creditor who has obtained a judgment in their favor can attach assets of their debtor and potentially have them sold to satisfy their claim. These possibilities are essential for a well-functioning legal system: without effective enforcement mechanisms, a court judgment would have little value.

But what if a creditor abuses these enforcement instruments? What if attachment is imposed with the sole purpose of pressuring the debtor, or if the execution clearly goes further than necessary? In such cases, there may be abuse of enforcement power – a situation in which law and case law set limits on what is permissible.

Why are limits necessary?

Limits on enforcement instruments are necessary for two reasons:

1. Protection against improper use: Enforcement instruments may not be used as a means of pressure or to inflict damage on the debtor that goes further than necessary for recovery. Attachment may not, for example, be imposed with the sole purpose of damaging the debtor’s reputation or economically destroying them.

2. Ensuring proportionality: Enforcement instruments must be proportionate to their purpose: recovery of the claim. If the attachment or execution is disproportionately heavy relative to the claim, or if it puts the debtor in a state of emergency, judicial intervention may be required.

In this comprehensive blog, we discuss the legal framework for abuse of enforcement instruments, relevant case law, defense possibilities, and practical considerations for both creditors and debtors.

2. Legal Framework

The limits on enforcement instruments are enshrined in various legal provisions. We discuss the general framework (abuse of rights) and specific attachment rules.

2.1 Article 3:13 Dutch Civil Code: The Prohibition on Abuse of Rights

The general basis for the prohibition on abuse of enforcement instruments lies in Article 3:13 of the Dutch Civil Code. This article provides that a power may not be exercised contrary to written or unwritten rules of law, nor if this is unacceptable according to standards of reasonableness and fairness.

Article 3:13 paragraph 2 DCC provides three concrete examples of situations in which abuse of rights may occur:

• a) If the power is exercised with no other purpose than to harm another
• Example: A creditor who has already received payment of their claim but still has attachment imposed to damage or pressure their former debtor.
• b) If the power is exercised for a purpose other than that for which it was granted
• Example: Attachment is imposed not to obtain recovery, but to force the debtor to make concessions in another legal or business matter.
• c) If there is a disproportion between the interest in exercising the power and the interest thereby harmed
• Example: For a claim of €5,000, attachment is imposed on the debtor’s only car, making it impossible for them to work and putting them in a state of emergency, while other recovery options exist.

Article 3:13 DCC is crucial for all forms of abuse of enforcement instruments and forms the general legal basis for judicial intervention.

2.2 Article 438 DCCP: The Execution Dispute

Article 438 of the Dutch Code of Civil Procedure provides the procedural route to challenge execution. This article provides that parties who have a dispute about the manner or progress of execution can turn to the preliminary relief judge.

The preliminary relief judge can suspend or lift the execution, possibly subject to providing security. This is an important instrument for debtors who believe there is abuse of enforcement power.

Important aspects of the execution dispute:

• • The execution dispute is handled in preliminary relief proceedings (expedited procedure)
• • The preliminary relief judge can make provisional orders, such as suspension of execution
• • The court may require the party requesting suspension to provide security
• • The preliminary relief judge’s decision is a provisional judgment and has no res judicata effect

2.3 Article 441 DCCP: Proportionality in Attachment

Article 441 DCCP contains an important proportionality standard: no attachment may be imposed if the expected proceeds are lower than the costs of execution, unless the creditor would thereby not be unreasonably disadvantaged.

This provision prevents attachment from being imposed on goods whose execution is economically pointless. Imposing attachment on an old car worth €500, while execution costs amount to €800, is in principle not permitted.

2.4 Article 447 DCCP: Exclusion of Attachment on Necessary Goods

Article 447 DCCP protects certain goods against attachment. This provision excludes attachment on goods necessary for the personal care of the debtor and their family, or for the exercise of their profession or business.

Examples of excluded goods:

• • Clothing, bedding and household items needed for daily use
• • Instruments and tools necessary for exercising the profession
• • Supplies needed for two months of business operations
• • Food for one month

2.5 Articles 475a and 475b DCCP: The Attachment-Free Allowance

Articles 475a and 475b DCCP regulate the attachment-free allowance for wage attachment. These articles provide that a certain portion of the debtor’s income is not subject to attachment, so they have enough money left to live on.

3. Case Law: Standard and Application

The law provides the framework, but its interpretation occurs in case law. The Supreme Court and lower courts have formulated important principles about when there is abuse of enforcement power.

3.1 The Central Standard: Supreme Court 2019 and 2020

In two important judgments – ECLI:NL:HR:2019:2026 and ECLI:NL:HR:2020:806 – the Supreme Court sharply defined the standard for abuse of enforcement power.

The core consideration reads as follows:

Suspension or lifting of execution is only possible if the enforcing party, also considering the interests of the party against whom execution is sought, has no interest worthy of respect in enforcement.

According to the Supreme Court, this can occur in two main situations:

1. Obvious legal or factual error

If the judgment being executed clearly rests on a legal or factual error, this can be grounds for suspension. But note: not every error is sufficient. It must be an obvious, evident error that makes the judgment unsustainable.

2. State of emergency due to new facts

If after the judgment new facts come to light that cause a state of emergency for the party against whom execution is sought, suspension may be justified. It must be a situation in which immediate enforcement would be unacceptable.

3.2 Balancing of Interests and Proportionality

In addition to the two main situations mentioned by the Supreme Court, the balancing of interests plays a crucial role. The court must weigh whether the enforcing party’s interest in execution outweighs the interest of the party against whom execution is sought in suspension.

Recent case law shows how this balancing works in practice:

ECLI:NL:GHAMS:2025:3001 – Court of Appeal Amsterdam

The court applied the standard to a case involving threatened mortgage execution. The court considered that the enforcing party had no interest worthy of respect in immediate execution, given that the debtor had proposed a reasonable payment arrangement and immediate sale would cause disproportionate damage.

ECLI:NL:RBZWB:2025:7910 – District Court Zeeland-West-Brabant

This court lifted the attachment because there was vexatious attachment: the attachment was imposed with the sole purpose of pressuring the debtor, while the creditor knew the claim would not hold up. This is a clear example of abuse of rights.

3.3 Criteria for Abuse: Further Specification

In ECLI:NL:GHARL:2013:CA3980, the Court of Appeal Arnhem-Leeuwarden provided a useful overview of criteria that may indicate abuse of enforcement power:

• • The execution serves solely to exert pressure or cause harm, not to obtain recovery
• • There is obvious disproportion between the claim and the enforcement instruments
• • The enforcing party knows or should know that their claim is not sustainable
• • Less intrusive alternatives are available but not utilized
• • The execution causes unnecessary damage that goes far beyond the recovery purpose

4. Overview of Defenses Against Abuse of Enforcement Instruments

Debtors and parties against whom execution is sought have various possibilities to defend themselves against abuse of enforcement instruments. Below we discuss the main defenses.

4.1 Appeal to Abuse of Rights (Article 3:13 DCC)

The most fundamental defense is the appeal to abuse of rights. The party against whom execution is sought can argue that the enforcing party abuses their power by:

• • Executing with the sole purpose of causing harm
• • Executing for a purpose other than recovery (for example, as a means of pressure)
• • Deploying disproportionately heavy enforcement instruments

How to raise this defense?

• • File a petition with the preliminary relief judge under Article 438 DCCP
• • Substantiate concretely why there is abuse (with facts and evidence)
• • Make a balancing of interests: show that your interest in suspension outweighs the enforcing party’s interest in execution

4.2 Appeal to Obvious Error in the Judgment

If the judgment being executed clearly rests on a legal or factual error, this can be grounds for suspension of execution.

Note: the bar is high!

• • It must be an obvious, evident error
• • Not every error is sufficient; other defenses must also be hopeless
• • The incorrect final judgment must be evident

4.3 Appeal to State of Emergency

If new facts after the judgment create a state of emergency for the party against whom execution is sought, suspension may be justified.

Examples of a state of emergency:

• • Serious illness making execution unacceptable at this time
• • Sudden loss of income causing acute financial distress
• • Execution of the only home while the resident cannot leave at this time (for example, due to care duties)

4.4 Appeal to Disproportionality

An independent defense can be that the execution or attachment is disproportionate: it goes further than necessary for recovery of the claim.

Examples of disproportionality:

• • Attachment on goods worth €100,000 for a claim of €5,000
• • Execution of the only home while sufficient other recovery options exist
• • Attachment on business assets essential for operations, while less intrusive alternatives are available

5. Examples from Case Law

Case law provides concrete examples of how the standard for abuse of enforcement power is applied in practice. We discuss several illustrative cases.

5.1 ECLI:NL:HR:2019:2026: The Leading Judgment

This Supreme Court judgment is the starting point for all discussions about abuse of enforcement power. The Supreme Court formulated the standard that suspension is only possible if the enforcing party has no interest worthy of respect in execution.

Facts: A party was ordered to pay but had filed an appeal. Pending the appeal, the opposing party wanted to execute. The condemned party requested suspension of execution.

Supreme Court considerations: The starting point is that a conviction is enforceable, even if an appeal is pending. Suspension is only possible if the enforcing party abuses their power. This is the case if they have no interest worthy of respect in execution, for example in case of an obvious error or state of emergency.

5.2 ECLI:NL:RBGEL:2025:7810: Mortgage Execution Suspended

Facts: A bank wanted to execute a mortgage on the debtor’s home. The debtor had proposed a reasonable payment arrangement, but the bank refused and proceeded to execution.

Court considerations: The court ruled that the debtor’s interests were disproportionately harmed. Execution of the home was not necessary, as the debtor had made a serious offer and the bank would also obtain recovery by accepting it. The execution was suspended.

5.3 ECLI:NL:RBOVE:2023:4835: Default Judgment Suspended

Facts: A default judgment was rendered against a party who did not appear. Upon execution, it appeared that the judgment was based on incorrect facts stated by the plaintiff.

Court considerations: The court ruled that there was an obvious factual error. The facts on which the judgment was based were evidently incorrect and could easily be refuted. Under these circumstances, the enforcing party had no interest worthy of respect in execution.

5.4 ECLI:NL:RBZWB:2025:7910: Vexatious Attachment Lifted

Facts: A party had imposed attachment on business assets of their opponent, while knowing that the claim for which attachment was imposed was very dubious. The attachment had major consequences for business operations.

Court considerations: The court ruled that there was vexatious attachment: the attachment was imposed with the primary purpose of pressuring the opponent, not to obtain recovery. This is abuse of rights within the meaning of Article 3:13 DCC.

6. Balancing of Interests in Execution Disputes

The balancing of interests is central to every execution dispute. The preliminary relief judge must assess whether the enforcing party’s interest in execution outweighs the interest of the party against whom execution is sought in suspension.

6.1 Legal Basis for Balancing of Interests

The balancing of interests is anchored in various legal provisions:

• • Article 3:13 DCC: Prohibition on abuse of rights, especially when there is disproportion between interests
• • Article 438 paragraph 3 DCCP: Procedural regulation of execution dispute, whereby the court can suspend execution
• • Article 441 paragraph 3 DCCP: Proportionality in attachment
• • Article 705 DCCP: Lifting of attachment with balancing of interests

6.2 Relevant Interests in the Balancing

Case law shows various interests that can be included in the balancing:

Interests of the enforcing party:

• • Prompt satisfaction of their claim
• • Prevention of loss of recovery
• • Effectuation of a court judgment

Interests of the party against whom execution is sought:

• • Preservation of the existing situation
• • Prevention of irreparable damage
• • Prevention of a state of emergency
• • Possibility to raise defenses on appeal
• • Proportionality of execution

7. Practical Considerations

For both creditors and debtors, it is important to know when there may be abuse of enforcement instruments and how to deal with this. Below are practical tips.

7.1 When Is There Abuse?

Abuse of enforcement instruments can occur in various forms. Here is an overview of warning signs:

Signal 1: Disproportion

The enforcement instruments are much heavier than necessary for recovery. For example: attachment on a home worth €500,000 for a claim of €2,000, while sufficient other recovery options exist.

Signal 2: Vexatious Character

The attachment or execution has as its primary purpose to pressure or harm the opponent, not to obtain recovery. For example: imposing attachment while the enforcing party knows the claim is not sustainable.

Signal 3: Obvious Error

The judgment being executed clearly rests on a legal or factual error. For example: a default judgment based on evidently incorrect facts.

Signal 4: State of Emergency

New facts would cause immediate execution to create a state of emergency not proportionate to the interest in execution. For example: execution of a home while the resident has just become seriously ill.

7.2 How Can a Debtor Defend Themselves?

If you are confronted with attachment or execution that you consider abuse, you can take the following steps:

Step 1: Collect evidence

• • Document all relevant facts and circumstances
• • Collect evidence of disproportion or damage
• • Keep all correspondence with the enforcing party

Step 2: Try negotiation first

• • Contact the enforcing party or their lawyer
• • Make a concrete proposal for a solution (for example, a payment arrangement)
• • Document these attempts (send everything in writing)

Step 3: Engage legal assistance

• • Consult a lawyer specialized in attachment and enforcement law
• • Have it assessed whether there are sufficient grounds for an execution dispute
• • Discuss the procedural risks and costs

Step 4: Initiate an execution dispute

• • File a petition with the preliminary relief judge (Article 438 DCCP)
• • Substantiate why there is abuse of enforcement power
• • Request suspension or lifting of execution
• • Make a concrete balancing of interests

7.3 What Role Does the Preliminary Relief Judge Play?

The preliminary relief judge has a crucial role in execution disputes. They can suspend or lift execution if there is abuse of enforcement power.

Powers of the preliminary relief judge:

• • Suspension of execution for a definite or indefinite period
• • Lifting of attachment
• • Setting conditions, such as providing security
• • Cost order

8. Conclusion

Enforcement instruments such as attachment and forced execution are essential for a well-functioning legal system. They enable creditors to actually recover their claims and give force to court judgments. Without these instruments, a judgment would in many cases have little value.

At the same time, these powerful instruments can be abused. A creditor can impose attachment or execute not to obtain recovery, but to pressure their opponent, cause harm, or economically destroy them. In such cases, there is abuse of enforcement power – a situation in which law and case law set clear limits.

The legal framework provides various points of connection for protection against abuse:

• • Article 3:13 DCC prohibits abuse of rights in general
• • Article 438 DCCP gives the preliminary relief judge the power to suspend or lift execution
• • Article 441 DCCP contains a proportionality standard for attachment
• • Articles 447, 475a and 475b DCCP protect certain goods and income against attachment

Case law has further sharpened the standard. The Supreme Court determined in ECLI:NL:HR:2019:2026 and ECLI:NL:HR:2020:806 that suspension or lifting of execution is only possible if the enforcing party has no interest worthy of respect in execution. This can be the case with:

• • An obvious legal or factual error in the judgment
• • A state of emergency caused by new facts
• • Vexatious or disproportionate attachment
• • Disproportion between interests

The court always makes a concrete balancing of interests, whereby the starting point is that judgments are enforceable. Only if the interest of the party against whom execution is sought evidently outweighs the enforcing party’s interest can suspension be pronounced.

For practice this means the following:

For creditors:

• • Ensure enforcement instruments are proportionate and only used for their intended purpose: recovery
• • Avoid vexatious attachment or execution that goes further than necessary
• • Consider less intrusive alternatives, such as a payment arrangement
• • Be cautious with execution if the judgment possibly rests on an error

For debtors:

• • Recognize the warning signs of abuse of enforcement instruments
• • Collect evidence and document all relevant facts
• • Try negotiation first before going to court
• • Engage legal assistance in a timely manner
• • Do not wait too long to initiate an execution dispute

The balance between effective law enforcement and protection against abuse is delicate. Law and case law ensure that enforcement instruments can fulfill their legitimate function, but at the same time set limits on improper use. These limits are not optional: abuse of enforcement instruments can lead to lifting of attachment, suspension of execution, and even damages.

For both creditors and debtors, it is essential to know and respect these limits. Only in this way can enforcement law fulfill its function: guaranteeing legal protection without disproportionately interfering with the rights and interests of those involved.

Need advice?

Are you facing attachment or execution that you consider abuse? Or are you a creditor and want to know how to correctly deploy your enforcement instruments? Then contact a specialized lawyer in attachment and enforcement law. Timely legal analysis can prevent much damage and significantly strengthen your position.

References

Legislation

• • Article 3:13 Dutch Civil Code – Abuse of rights
• • Article 438 Dutch Code of Civil Procedure – Execution dispute
• • Article 441 Dutch Code of Civil Procedure – Proportionality in attachment
• • Article 447 Dutch Code of Civil Procedure – Exclusions from attachment
• • Article 475a Dutch Code of Civil Procedure – Attachment-free allowance
• • Article 475b Dutch Code of Civil Procedure – Attachment-free allowance (supplementary)
• • Article 475i Dutch Code of Civil Procedure – Service deadlines
• • Article 705 Dutch Code of Civil Procedure – Lifting of attachment

Case Law

• • Supreme Court September 27, 2019, ECLI:NL:HR:2019:2026
• • Supreme Court May 29, 2020, ECLI:NL:HR:2020:806
• • Court of Appeal Arnhem-Leeuwarden September 17, 2013, ECLI:NL:GHARL:2013:CA3980
• • Court of Appeal Amsterdam March 5, 2025, ECLI:NL:GHAMS:2025:3001
• • Court of Appeal Amsterdam November 5, 2024, ECLI:NL:GHAMS:2024:1889
• • Court of Appeal ‘s-Hertogenbosch May 21, 2024, ECLI:NL:GHSHE:2024:3300
• • Court of Appeal ‘s-Hertogenbosch October 31, 2023, ECLI:NL:GHSHE:2023:3681
• • District Court Zeeland-West-Brabant December 10, 2025, ECLI:NL:RBZWB:2025:7910
• • District Court Zeeland-West-Brabant December 18, 2023, ECLI:NL:RBZWB:2023:9429
• • District Court Central Netherlands October 3, 2024, ECLI:NL:RBMNE:2024:5915
• • District Court Central Netherlands July 15, 2022, ECLI:NL:RBMNE:2022:3576
• • District Court Gelderland December 30, 2025, ECLI:NL:RBGEL:2025:7810
• • District Court Gelderland December 20, 2025, ECLI:NL:RBGEL:2025:7169
• • District Court Gelderland January 28, 2022, ECLI:NL:RBGEL:2022:538
• • District Court Overijssel December 20, 2025, ECLI:NL:RBOVE:2025:6871
• • District Court Overijssel August 11, 2023, ECLI:NL:RBOVE:2023:4835
• • District Court The Hague September 4, 2024, ECLI:NL:RBDHA:2024:6587