Umowa komisowa według prawa holenderskiego: własność, ryzyko i niewypłacalność

A consignment agreement is a contract under which an owner (the consignor) places goods with a seller (the consignee), who only pays once they are sold to a customer; until that sale, ownership stays with the consignor. Dutch law has no named contract for this: it is a mixed contract, usually combining mandate (lastgeving) under Article 7:414 of the Dutch Civil Code (BW) with storage and, on resale, sale; the main risk is that it is reclassified as a commercial agency agreement with mandatory rules under Article 7:428 BW.

That starting point decides who bears the loss if stock is damaged, what happens to goods and proceeds if the consignee goes bankrupt, and which clauses a workable agreement needs. This article sets out the Dutch rules on each point.

What is a consignment agreement under Dutch law?

In a consignment, delivery of the goods and transfer of ownership are deliberately separated. The consignee holds the goods for the consignor, who stays owner; title passes only when the consignee sells to a customer, directly from the consignor to that customer.

This is not the same as a sale with retention of title. Under Article 3:92 BW, retention of title applies to goods already sold and delivered: ownership passes once the price is paid, and the buyer owes the price whether or not it resells. In a consignment no sale between the parties has taken place, the consignee owes nothing until it sells, and unsold goods go back.

Consignment is used where the consignee will not carry the stock risk: galleries selling for artists, retailers testing a new label, producers placing goods in independent shops, and suppliers keeping spare parts at a customer’s site.

How does the customer get good title?

Under Article 3:84 BW a transfer of ownership requires a valid legal basis, delivery and a transferor entitled to dispose of the goods. The consignee is not the owner, so the contract must authorise it to sell for the consignor’s account.

Where the consignee sells in its own name, the rules on mandate in Articles 7:414 and following BW apply. In addition, Article 3:86 BW protects a buyer who acquires a movable for value and in good faith, even if the seller was not entitled to dispose of it. A consignee that sells below the agreed minimum price therefore still passes good title; the consignor only has a damages claim. Set out precisely what the consignee may do on prices, discounts and storage locations, and who bears the loss if it breaches those limits.

Who bears the risk while the goods are with the consignee?

Because the consignor stays owner, the loss of goods that are destroyed or stolen falls on the consignor, unless the contract says otherwise or the consignee is at fault. The consignee must observe the care of a good contractor under Article 7:401 BW and is liable for an attributable failure under Article 6:74 BW.

Three clauses prevent most disputes. Agree that the consignee bears the risk of loss, theft and damage from delivery until return, and insures the goods for replacement value. Require segregation: labelling, a separate storage area and stock records with serial or batch numbers. And agree inspection and stock-count rights on reasonable notice.

What happens if the consignee goes bankrupt?

The goods do not fall into the bankruptcy estate, so the consignor can reclaim them from the trustee (curator). That right is only as good as your ability to identify the goods; stock mixed with the consignee’s own inventory or relabelled is often lost, and the owner must prove ownership.

A bank pledge over the consignee’s inventory usually does not catch identifiable consignment stock. Under Article 3:238 BW a pledge given by a non-owner is only valid if the pledgee is in good faith at the moment the goods come under its control, which is not the case with a non-possessory pledge. The supervisory judge can impose a cooling-off period under Article 63a of the Bankruptcy Act (Faillissementswet) of up to two months, extendable once by up to two months, during which you need permission to reclaim goods.

The greater exposure is the money. Proceeds the consignee collected before bankruptcy usually sit in its general account, and for those you are an ordinary unsecured creditor. Keep settlement cycles short. Where the consignee sold in its own name, Article 7:420 BW lets you take over its claims against the customer by written notice to both, including on bankruptcy. Combine that with a pledge over the resale receivables.

How should commission, settlement and reporting be arranged?

Tie payment to a fixed report: units sold, price achieved, discounts, returns and closing stock per item, at a fixed frequency. Give the consignor audit and stock-count rights, with a consequence if the count does not match.

Set the commission as a percentage of the actual selling price, stating whether VAT is included, or as a fixed amount per item, with rules for discounts and bundles. Fix the settlement period in days from the report. Late payment between businesses attracts statutory commercial interest under Article 6:119a BW without a reminder. Under Article 6:119a(5) BW a payment term above 60 days is only valid if expressly agreed and not grossly unfair, and under Article 6:119a(6) BW a large company paying a small or medium-sized business cannot agree a term longer than 30 days.

When does consignment become commercial agency?

If the consignee acts as a permanent intermediary who negotiates or concludes sales in the consignor’s name for remuneration, the relationship can be a commercial agency agreement under Article 7:428 BW. The substance decides, not the title of the document.

Agency brings mandatory rules: statutory notice periods, information duties and a possible goodwill indemnity on termination under Article 7:442 BW. Agreements labelled consignment are often reclassified after termination, exactly when that claim arises. A consignee that holds stock, sells in its own name at its own retail price and remits the proceeds less commission is far from an agent; one that solicits orders in the consignor’s name at the consignor’s prices is close. Our article on gdzie autonomia partii spotyka się z obowiązującym prawem explains why the label does not settle the question.

Who answers to consumers for the goods?

Where the consignee sells to consumers, it is the seller and must deliver goods that conform to the contract under Article 7:17 BW. Complaints, repairs and refunds are its problem first, and it has a right of recourse against its own supplier.

The consignor should expect those claims to come back and set a time limit and an evidence requirement for them. Product liability under Articles 6:185 and following BW lies with the producer, and for goods from outside the EU with the importer. A revised EU Product Liability Directive was adopted in 2024; until Dutch implementing legislation enters into force, the current Book 6 rules apply. Allocate responsibility for CE marking and other product compliance expressly.

Which clauses does a consignment agreement need?

A workable consignment agreement is short, but leaves nothing implicit. It identifies the goods precisely in an annex updated with every delivery, by article number, batch or serial number, condition and expiry date where relevant.

It states that ownership stays with the consignor until sale to the end customer and that the consignee holds the goods for the consignor. It sets the price or price formula, discount limits and storage locations. It deals with risk and insurance, segregation and labelling, reporting and audit, commission and settlement, and returns: who pays the freight and what happens to damaged or missing items. It fixes a term and notice period, says whether the consignee may buy remaining stock on termination, and chooses the governing law and forum. Do not podpisać umowę komisową before each point has an answer in the text.

An example to illustrate two clauses:

Ownership and risk. The Goods remain the property of the Consignor until the moment of sale to an end customer, at which moment ownership passes directly from the Consignor to that customer. The Consignee holds the Goods for the Consignor, keeps them separate from its own stock and marks them as the property of the Consignor. The Consignee bears the risk of loss, theft and damage from delivery until return, and insures the Goods for their replacement value.

Term, termination and unsold Goods. This agreement is entered into for one year and may be terminated by either party on thirty days’ written notice. Within ten days of the end date the Consignee provides a full stock list and either returns the unsold Goods at its own expense or purchases them at the price stated in Annex 1, at the Consignor’s option.

What changes in a cross-border consignment?

If the parties are in different countries, choose the governing law expressly; otherwise the EU Rome I Regulation decides, and it may point to the law of the consignee’s country. Jurisdiction within the EU follows the Brussels I bis Regulation, which allows a choice of court, for example a Dutch court or arbitration at the Netherlands Arbitration Institute (NAI).

Property rights in the goods are governed by the law of the country where the goods are, whatever the contract says. Check locally whether ownership is respected and whether registration applies. International road transport falls under the CMR Convention, which limits the carrier’s liability by weight, so insure the gap. The VAT treatment, including call-off stock within the EU, is for your tax adviser; the contract should record who files what. Our guide to międzynarodowe kontrakty handlowe lists the mistakes that recur.

What should you check as a consignor?

As consignor you carry the ownership risk. Check these points before you ship goods.

• Are the goods listed by serial or batch number in an annex, and labelled as your property at the consignee’s site?
• Does the consignee bear the risk of loss and damage, and is the stock insured for replacement value?
• Is there a fixed reporting frequency, a short settlement period and an audit and stock-count right?
• Does the contract record your right under Article 7:420 BW to take over claims against customers, plus a pledge over resale receivables?
• Does the way the consignee works keep it outside commercial agency under Article 7:428 BW?

What should you check as a consignee?

As consignee you sell to customers in your own name and answer to them first. Check these points before you accept stock.

• Which price limits and discount rules bind you, and who bears the loss if you sell outside them?
• Who bears the risk of theft and damage while the goods are on your premises, and is it insured?
• How quickly must you report and pay, and is the agreed payment term valid under Article 6:119a BW?
• What support does the consignor give for consumer complaints and repairs under Article 7:17 BW?
• What happens to unsold stock and freight costs when the agreement ends?

What can we do for you with a consignment agreement?

Nasza prawnicy korporacyjni act for suppliers, retailers, galleries and distributors.

• We draft or review your consignment agreement, including the goods annex and reporting clauses.
• We assess whether the arrangement risks being classed as commercial agency.
• We reclaim identifiable stock from a bankruptcy trustee and send the notice under Article 7:420 BW.
• We act when a consignee fails to report, sells outside the agreed terms or does not pay.
• We draft the governing law and forum clauses for cross-border consignment.

Podsumowanie

• In a consignment, ownership stays with the consignor until the consignee sells to a customer; Dutch law treats it as a mixed contract based on mandate (Article 7:414 BW).
• A customer in good faith gets good title under Article 3:86 BW, even if the consignee breaks the agreed limits.
• Identifiable stock stays outside the consignee’s bankruptcy; proceeds already collected usually do not.
• A consignee acting in the consignor’s name can be a commercial agent with a goodwill claim under Article 7:442 BW.

PYTANIA I ODPOWIEDZI