22.6.3.2 Undercapitalization and risk acceptance by creditors

Previously in this study, the heterogeneity of a company’s creditors was highlighted; it was concluded that an inadequate financial structure is not necessarily prejudicial to all creditors. In my opinion, this means that the extent to which a creditor can be deemed to have accepted the risk associated with the financial structure is relevant for liability of shareholders due to culpable undercapitalization. The bank that was or could have been fully aware of the company’s financial position and nevertheless proceeded to issue financing cannot bring legal action against the shareholder based on Section 6:162 DCC if the risks materialize and the company is declared bankrupt. On the other hand, trade creditors, employees and consumers will not readily be assumed to have accepted the intrinsic risks of undercapitalization.

This distinction results in difficult questions; if the trustee brings legal action against the shareholder on behalf of the collective creditors, for example, by means of a Peeters/Gatzen claim, or based on Section 2:248 (7) DCC. Even though as a result of the culpable undercapitalization, the shareholder acted wrongfully vis-à-vis the collective creditors, perceived as a unit, it would be unreasonable if owing to the trustee’s intervention, creditors who could never have initiated legal action against the shareholder independently can now pass on the accepted risk to the shareholder, because they participate in the proceeds of the claim via the bankrupt estate. This problem falls outside the scope of the subject study, but Dutch law does not appear to provide a ready-made solution.