12.4 The Affi rmative Defence

The main rule governing the allocation of the duty to assert facts and the burden of proof (Article 150 Dutch Code of Civil Procedure, ‘DCCP’) provides that the party invoking legal consequences of facts asserted by it bears the burden of proving those facts. If the defendant contests the facts asserted by the claimant with a substantiated challenge (grondslagverweer), the claimant bears the burden of proving the facts presented by him. These facts must be established before the court can award the claimant’s claim.

If, in addition to or instead of a substantiated challenge, the defendant puts forward facts which, if proven, would lead to the claimant’s claim being denied for another reason, such a defence is called an affirmative defence (bevrijdend verweer). With such a defence, the defendant invokes a rule of law other than that relied on by the claimant; he invokes the legal consequences of facts he has asserted. This is why the doctrine of affirmative defence is also based on the main rule of Article 150 DCCP. Where a defendant raises an affirmative defence, he must assert facts and, if these meet with a substantiated challenge by the claimant, he also bears the burden of proving the facts asserted by him.

The court examines and decides the case on the basis of the grounds used by the parties as the basis of their claim, request or defence (Article 24 DCCP). It examines whether the facts as stated by the party bearing the burden of proof have been established and whether those facts can support the claim of the claimant or the affirmative defence of the defendant. The elements determining the duty to assert facts, and thereby the burden of proof, can be found in substantive law.

The allocation of the burden of proof concerns the allocation of the risk of failure to prove. If the party that invokes legal consequences of facts asserted by it must prove certain facts and fails to do so, the risk of failure to prove entails that it will lose the case, or that part of the case to which those facts relate (non liquet).

The main rule governing the allocation of the duty to assert facts and the burden of proof is found in the first part of the sentence forming Article 150 DCCP. It follows from the second part of that sentence that the burden of proof can change only if a special rule is applied or where the principle of reasonableness and fairness requires otherwise. A reversal of the burden of proof results in an entirely different position under substantive law, piercing the ordinary rule of allocation of the duty to assert facts and the burden of proof.

In case of moderation, the duty to assert facts and the burden of proof still remain with the party invoking the legal consequences of those facts; for example, in the event of a stricter duty to substantiate for the other party or where the court accepts a legal or judicial presumption in favour of the party bearing the burden of proof.

Should the court find that the defendant has raised a defence against the claimant’s contentions, the court must qualify the facts submitted by the defendant: does the defence constitute a substantiated challenge of the grounds of the claim or is it an affirmative defence? In qualifying the defence, the grounds of the claim associated with the legal consequence invoked by the claimant form the starting point; the claimant invokes the legal consequences of the facts asserted by him. The court will construe the defence as a challenge of the grounds of the claim if the defendant submits a substantiated challenge of allegations made by the claimant as grounds for his claim which are necessary to bring about the legal consequence sought by him. The defendant does not have a duty to assert facts but will need to substantiate his challenge sufficiently. The claimant with the duty to assert facts has the burden of proof; not so the defendant who contests his assertions.

Where the defendant does not contest the facts as asserted by the claimant or leaves such contestation moot, the claim might readily be awarded. If the defendant wishes to avoid the legal consequence invoked by the claimant, he will have to invoke a different legal consequence. The defendant will rely on a new set of facts based on a different legal standard than the one invoked by the claimant. The court will qualify that defence as an affirmative defence; the legal standard invoked by the defendant entails a legal consequence that bars an award of the claimant’s claim. On the defendant rests the duty to assert facts and, in the event of a substantiated challenge by the claimant, the burden of proof.

Where the defendant represents the case differently (presenting his own interpretation of the facts) and in doing so does not contradict certain facts as asserted by the claimant, his defence must be taken as a whole. The defendant is deemed to challenge the facts asserted by the claimant, and thus to conduct a defence challenging the grounds of the claim.

In the case of an admission (or non-contestation) followed by a limiting addition of assertions, the entire defence will be deemed a defence challenging the grounds of the claim; the addition may not be isolated from the admission. In a partial admission, the admitted facts may not be considered to be established. Separation is not permitted: the defendant cannot be required to prove the contentions, to the extent that they differ from those of the claimant. Separation is only permitted if it can be established that the addition does not undermine the claimant’s claim. In that case, the court may recognise the admitted facts as being established and separate the addition from the part that has been admitted by the defendant; the addition is then qualified as an affirmative defence.

In some proceedings, the defendant may have the choice between a defence against the grounds of the claim and an affirmative defence. Where an insured sues the insurer, seeking payment because he has suffered loss due to an uncertain event, the insurer can choose between two possible approaches if the parties disagree on whether the uncertain event took place: the insurer may challenge, with substantiation, that the uncertain event took place (a defence challenging the grounds of the claim) or the insurer may argue that the uncertain event was faked (an affirmative defence).

In the former case (defence challenging the grounds of the claim), the assertions on which the claimant based his claim are the starting point. If the insurer, using the results of a detailed investigation by an expert, substantiates its defence that there was no uncertain event, the insured will have to parry that contestation convincingly. The insured bears the risk of proof of the insured event. If the claimant does not - or does not sufficiently - address the arguments in the expert opinion submitted by the insurer, the insured has failed to refute the results of the investigation. The claim will be dismissed.

Where the insurer invokes Article 7:941(5) of the Dutch Civil Code (‘DCC’) in addition to or instead of a substantiated challenge, it will argue that the event was faked (an affirmative defence). If the insurer has hard evidence about the event that is difficult for the insured to dispute, it may be established that the claimant is guilty of insurance fraud, with all the consequences this entails. If the insurer possesses hard evidence, the result of the choice between a defence against the grounds of the claim and an affirmative defence will make little difference to the insurer. However, should the insurer opt for an affirmative defence, the insured will in any event be liable to the insurer for the costs of the investigation.

Should the parties disagree as to whether or not the insurance contract had been terminated for non-payment of premiums at the time of the uncertain event, two lines of reasoning are possible. If the insurer’s defence (at the time of the event the contract had been terminated) is regarded as a defence against the grounds of the claim, then the insurer has a stricter duty to substantiate. The insurer will then have to submit the demand letter mentioned in Article 7:934 DCC. Via the sanctions of the Supreme Court’s NNEK/Mourik judgment, the result is similar if it is assumed that the insured has an interest in continuation of the contract. In that case, the insurer conducts an affirmative defence.

Where a claimant seeks payment of the purchase price of goods that have been delivered, but the defendant pleads that there has been no delivery, such a defence qualifies as a defence against the grounds of the claim. The defendant disputes a necessary element: the delivery. The claimant who argues that delivery did take place must prove this. A tipping point has been observed: if the defendant relies upon faulty delivery, this reliance constitutes an affirmative defence. The defendant does not dispute the grounds of the claim and will need to assert and prove that the delivery was faulty.

In the event of nonperformance of a contractual obligation, the claimant can choose between three possible legal consequences: performance (insofar as this is still possible), setting aside, or damages. The claimant would be wise to invoke the basis of Article 3:296 DCC (performance): the risk of proof of correct performance is then borne by the defendant (affirmative defence). If the claimant seeks the setting aside of the contract (Article 6:265 DCC) and/or damages (Article 6:74 DCC), a substantiated dispute of the failure qualifies as a defence against the grounds of the claim; the claimant has to prove the failure. The parties can influence the legal basis to be formulated by the court by submitting arguments for the interpretation of the contract.

A party bears the burden of proof only as regards those facts that are necessary and sufficient for the conclusion that they produce the legal effects sought by that party. In principle a party does not bear the risk of proof for anything outside its burden of proof. For the claimant, satisfying the duty to mention – in his first submission in proceedings (e.g. a writ of summons) – the defences, if any, used by the defendant in preprocedural communications does not entail a burden of proof. The defendant, too, may anticipate the claimant’s response to its affirmative defence without thereby assuming a burden of proof.

Sometimes the law changes the allocation of the burden of proof or provisions of substantive law are interpreted differently in the case law such that the allocation of the duty to assert facts and the burden of proof is changed.

As a result of implementation of European consumer directives, articles of law have been incorporated into Dutch law that provide consumers with a more favourable burden of proof (especially regarding information duties).

Where pre-contractual information is prescribed with consumer credit agreements, the Court of Justice of the European Union held that the risk of proof that the information was given rests with the credit institution.

Under the case law of the Supreme Court, terminability has become the main rule for (non-statutory) performance contracts entered into for an indefinite period. The party that has been given notice of termination must assert facts and circumstances and, if necessary, prove the existence of circumstances preventing termination.

Pursuant to Article 6:265 DCC, where a creditor seeks the setting aside of a contract, he must assert, and if necessary prove, a failure on the part of the debtor; the debtor must assert and, if necessary, prove the circumstances that relate to application of the “unless-clause” (an affirmative defence). The Supreme Court’s Eigen Haard judgment hands the defendant an affirmative defence: under certain circumstances, the defence against the grounds of the claim that there was no failure may include the plea that this failure does not the full or partial setting aside of the lease.

In case of consumer protection provisions under European Union law, the court is required to apply and review them of its own motion, whether or not a party has invoked them. Of its own motion, the court will present the defendant/consumer with an affirmative defence in respect of which the defendant bears the burden of proof, as if the defendant had invoked that rule of law himself.

It is possible to deviate from the rules of statutory law of evidence by concluding an agreement as to burden of proof (Article 153 DCCP) that aims to minimise the risks associated with litigation. There are limits to the possibilities of concluding an agreement as to burden of proof. A clause regulating the burden of proof may potentially be unfair within the meaning of the EU directive and therefore be disapplied.

The term ‘affirmative defence’ is used as an umbrella term and includes both a ‘claim-voiding defence’ (rechtsvernietigend verweer) and a ‘claim-barring defence’ (rechtsverhinderend verweer).

In a claim-voiding affirmative defence, the defendant argues that the defendant’s obligation did exist, but no longer exists. The defendant has the duty to assert and the burden of proving that the claim has been extinguished.

A claim-barring defence refers to a defence in which the defendant, while in principle accepting the existence of the obligation and the resulting right of action of the claimant, asserts facts that have a legal consequence which is separate from the legal basis of the claimant’s claim, so that no obligation has arisen for the defendant either. The defendant has the duty to assert and burden of proving facts that form a bar to the claim.

The defendant may structure his defence such that the primary defence is a substantiated challenge and the alternative defence is an affirmative defence. The court must hear the claimant’s claims in the order presented by the claimant; in principle, the court may itself determine the order of the defences to be heard. If the court rules that the alternative defence is successful, it need not examine the primary position. In that case, in view of procedural economy, the primary basis of the claim is left unaddressed (what I call a ‘jump decision’).

Several defences have been discussed; is it a defence challenging the grounds of the claim or an affirmative defence?

Where a third party held a pseudo attorney-in-fact liable and the pseudo attorney-in-fact invoked lack of causation (the contract would not have been performed even with an adequate power of attorney), the Supreme Court qualified the pseudo attorney-in-fact’s defence as an affirmative defence. Most authors disagree with this qualification.

Where, in professional liability proceedings, the attorney argued lack of causation between the professional error and the damage (a defence against the grounds of the claim), the Supreme Court formulated a complicated burden-of-proof rule in the event that the client did not bear the risk of proof in the original proceedings. Several authors suggest a different solution.

A defendant’s reliance on the non-fulfilment of a condition precedent was viewed by the Supreme Court as an unmitigated challenge of the creditor’s position (a defence against the grounds of the claim). The claimant will have to prove that the condition precedent has been fulfilled; the claimant will have to prove that the debt became due and payable. This qualification is generally accepted.

According to the Supreme Court, where the parties are at odds as to whether a condition precedent was agreed (the defendant invokes the existence of a condition precedent), the burden of proving the conditional nature of the contract is on the defendant (an affirmative defence). Several authors hold that the Supreme Court should reverse this decision. They conclude that the defence is a defence against the grounds of the claim and that the claimant will have to prove the unconditionality of the contract.

The party invoking a resolutive condition (and, by extension, fulfilment of that condition) will have to assert and, if necessary, prove that the parties agreed a resolutive condition and that the condition has been fulfilled (an affirmative defence). There is no difference of opinion on this allocation of the burden of proof.

There is no disagreement on the qualification of the following defences either.

If the claimant seeks an amount from the defendant on account of undue payment, it is up to the claimant to assert and, if necessary, prove that he paid without any legal basis. A reference by the defendant to a legal basis on which the payment was made qualifies as a substantiated challenge (a defence against the grounds). If, according to the court, the defendant has knowledge of what happened (the ‘domain’ notion), the defendant be assumed to have a stricter duty to substantiate.

If the defendant does not accept the probative value of an instrument produced by the claimant, he may deny outright that his signature is on the instrument (a defence against the grounds of the claim); a clear challenge of authenticity is sufficient. The defendant can also argue that the deed was forged (an affirmative defence). Furthermore, the defendant may also make an offer of proof that the instrument does not reflect what was actually stated or that the statement contained in the instrument does not reflect reality.

For the defendant to be released from his obligations, he will have to invoke a legal consequence. Depending on the legal consequence, the defendant will have to state the facts required for the legal ground.

The defendant will have to make a counterclaim if he needs an operative section in the court’s judgment to make his defence successful. If the defendant relies on a claim-barring affirmative defence, the defendant will not need a counterclaim if he invokes the voidability of a juridical act (Article 3:51(3) DCC) or if he presents the defence that he has already issued an extrajudicial declaration setting aside the juridical act (Article 6:267(2) DCC). Nor does the defendant have to submit a counterclaim if he can/may set off the damages sought on the basis of faulty performance (Art. 6:74 DCC) against the claimant’s claim. In all such cases, the legal consequence is created by the legal finding in the judgment accepting the affirmative defence. Once that judgment has become final, acceptance of the affirmative defence has the force of res judicata. If the defendant seeks damages in addition to setting aside or avoidance, he will have to bring counterclaims accordingly.

If the claimant brings an action seeking a declaration that a claim asserted by the defendant does not exist, it is an action for negative declaratory relief. The claimant relies on the legal consequence effect that a claim asserted by the defendant does not exist. The defendant has not – or in any event not yet – founded a claim on the existence of this legal consequence. The consequence of admitting such declaratory relief is that the defendant will be assigned the risk of proof. If it remains uncertain whether the defendant’s claim exists, the risk of proof lies with the defendant. In my opinion, the problem that an action for negative declaratory relief will force a defendant to deal with a specific court at a specific time can be overcome by creating a condition of admissibility for the claimant: the claimant will have to argue that bringing the action is the only way to obtain a decision on the dispute between the claimant and the defendant.

If the defendant raises an affirmative defence, this will affect the procedural rights and obligations of both parties. The requirements imposed on the claimant with burden of proof and the defendant with burden of rebuttal can serve as a blueprint for the defendant in his affirmative defence and for the claimant responding to that affirmative defence. The requirements ‘claim and its grounds’ (Article 111 (2) opening words and d, DCCP) apply as the rationale for an affirmative defence. The defendant ‘turns himself into claimant’ as far as his affirmative defence is concerned. The defendant must state a clear legal basis (Article 24 DCCP) and make clear what facts he is asserting for his reliance on certain legal consequences. The defendant has a duty to assert all elements leading to the assumption of a legal basis. In addition, the defendant has a duty to present evidence (Article 128(5) DCCP) and must make an offer of proof. The requirements that can be imposed on an offer of proof are less strict in specific cases (the offer of proof concerns subjective elements that are in the domain of the other party).

If the defendant states that he needs information from the claimant in order to be able to sufficiently substantiate the affirmative defence, he can make use of the procedural options under Articles 22(1), 843a, 186 and 202 DCCP. The risk of proof lies with the defendant; he therefore has an interest that must be respected at law.

If, with regard to the affirmative defence, the defendant has satisfied his duty to assert facts and has sufficiently substantiated his reliance on a different legal consequence, the claimant’s response may be (i) a defence against the grounds (i.e. a reasoned disputation of the facts as asserted by the defendant in his affirmative defence) or (ii) an affirmative defence (a counter-affirmative defence; reliance on a different legal consequence than that relied on by the defendant).

Where the claimant presents a defence against the grounds, in various scenarios the court must apply the principle of audi alteram partem and allow the claimant to comment on the affirmative defence. These scenarios are (i) the claimant has mentioned the affirmative defence known to him in his writ of summons, (ii) the claimant only learns of the affirmative defence upon reading the statement of defence, (iii) the claimant is confronted with the affirmative defence for the first time during the hearing, and (iv) the claimant did not mention the affirmative defence in the writ summons and it later transpires that he was aware of the affirmative defence. The claimant has the right to effective access to court (Article 6 ECHR) regarding his response to the affirmative defence.

If the claimant states that he needs information from the defendant in order to be able to substantiate his defence against the grounds in respect of the defendant’s affirmative defence, he may use the possibilities offered by Articles 22(1), 843a, 186 and 202 DCCP. The claimant does not bear the risk of proof, but must be able to dispute the facts alleged by the defendant with sufficient substantiation. If a substantiated disputation cannot be brought about in any way other than by means of one of the aforementioned procedural options, then, in my opinion, these options can be successfully invoked.

If the claimant responds to the affirmative defence with an affirmative defence of his own (a counter-affirmative defence), the requirements to be imposed on a counter-affirmative defence are the same as those for an ordinary affirmative defence as regards the duty to assert facts, duty to substantiate, duty to present evidence and offer of proof.

If the defendant has satisfied his burden of proof and the claimant has made a substantiated challenge, the defendant has the burden of proving the facts he has alleged. In terms of evidence, the requirements for the defendant are similar to those imposed on the claimant who bears the risk of proof under Article 150 DCCP. The chapter discusses the offer of proof by the defendant, the instruction to the defendant to provide proof, the payment by the defendant of an advance on an expert’s fee, the probative value of written evidence and the probative value of (third-party) witness statements. The probative value of a party’s witness statement is still governed by Article 164(2) DCCP; the words ‘facts to be proved by him’ are reserved for facts for which, according to the main rule of Article 150 DCCP, the burden of proof and the risk of proof lie with the relevant party (here, the defendant).

Defendants with an affirmative defence can anticipate the assignment of the duty to assert facts and the burden of proof, increasing their chances in advance. By means of written evidence that constitutes compelling evidence, an agreement as to the burden of proof, or general terms and conditions, repeat players ensure they have opportunities to mitigate or even reverse the risk of proof. For example, insurers make the most of application forms when entering into an insurance contract and draft their policy terms to carefully minimise the risk of proof.

Under provisions of substantive law and the general rules of evidence (Articles 149 and 150 DCCP), defendants also have several evidentiary options during the proceedings. Where applicable, they may use specific articles of law containing a legal presumption.

The evidentiary rule that insufficiently contested facts can lead to the establishment of those facts may also aid defendants with their burden of proof. The court will consider facts asserted by the defendant as being established if the claimant does not contest those facts with sufficient substantiation or at all.

However, the court must give the claimant sufficient and appropriate opportunity to contest the defendant’s findings with substantiation. Thus, the party not bearing the burden of proof (here, the claimant) can suffice with a sufficiently substantiated challenge. If it engages an expert to assess the other party’s expert report in order to gather arguments in support of its argumentation, the costs involved will be deemed reasonably incurred.

An affirmative defence, too, may be proven prima facie; the claimant will be given the opportunity to provide rebuttal evidence. A defendant may additionally, if the circumstances allow, try to get the court to impose a stricter duty to substantiate on the claimant.

Common affirmative and counter-affirmative defences are described in this chapter. The specific duty to assert facts, sufficient substantiation, substantiated challenge by the opposing party, burden of proof for the defendant and assessment by the court have been fleshed out.

Reliance on final discharge and piercing of prescription are discussed in the summary.

If the claimant seeks payment of a sum of money from the defendant, the defendant could invoke an agreed discharge. When interpreting a settlement agreement in which final discharge has been agreed, the court may give a prima facie linguistic interpretation based on the text of the agreement, which is a branch of the Supreme Court’s landmark ‘Haviltex standard’. In that case, the court will depart from the interpretation of one party and give the other party the opportunity to prove that its interpretation is the correct one. The counterparty of the party benefiting from the prima facie interpretation can provide rebuttal evidence. Whether there is evidence or rebuttal evidence depends on the burden of proof. If the claimant benefits from the court’s prima facie interpretation, the defendant will be allowed to provide further evidence. The defendant argues that the claimant’s claim has been extinguished (an affirmative defence). The risk of proof lies with the defendant; he invokes the legal consequences of his different interpretation. If the defendant benefits from the court’s prima facie interpretation, the claimant, who presented a different interpretation, will be allowed to submit rebuttal evidence against the court’s prima facie linguistic interpretation. If no conclusion can be reached on the basis of the text and/or the purport of the agreement, the court will examine the merits of both parties’ contentions and defences. Both parties have the duty to assert and dispute facts. The defendant bears the burden of proof; he relies on the claimant’s claim being extinguished (an affirmative defence). On the basis of the facts as asserted and disputed or left undisputed, the court can give a final judgment on the interpretation or rule that proof has been delivered prima facie. In such a ruling, the court departs from the interpretation given by the defendant (the party with the burden of proof) and gives the claimant the opportunity to provide rebuttal evidence.

Reliance on an applicable prescription period forms a bar to award of a claim. An exception to the strict enforcement of prescription periods may be made if the counterparty of the party invoking prescription argues that reliance on prescription (an affirmative defence) would be unacceptable by the standards of reasonableness and fairness in this specific case (a counter-affirmative defence). This reliance on interruption of the prescription period by the claimant may be accepted under special circumstances (the derogatory effect of Article 6:2(2) or Article 6:248(2) DCC). The claimant has the duty to assert facts and, if necessary, the burden of proof of those special circumstances. Where it concerns cases of hidden loss - the prescription period expires while the injured party was unable to bring an action - the parties and the court will go through the list of points of view in the Supreme Court’s Van Hese/De Schelde judgment. The court will exercise restraint.

The long prescription period also starts to run if, objectively speaking, the party with the right of action was unable to bring his action in good time, or in any event not before; in that case, there may also be ‘hidden loss’ and the prescription period may be interrupted. In these cases, the points of view as formulated in Van Hese/De Schelde are followed.

Based on case law, a challenge of some specific affirmative defences leads to a different outcome than the main rule would lead one to expect. For example, where a claimant sought damages from the defendant, the defendant subsequently invoked the affirmative defence that the claimant did not comply with the timeliness requirements under a statutory provision (a reliance on forfeiture of rights). The claimant disputed this with substantiation. The Supreme Court – based on the purport and/or wording of the provision – attributed the burden of proof in such a way that the duty to assert facts and the burden of proof, in the sense of the risk of proof, were borne by the disputing party. Under the main rule of evidence, the substantiated disputation of the affirmative defence would qualify as a defence against the grounds of the claim.

The risk of proof is allocated to the disputing party in a few, very specific doctrines. The idea behind this allocation is that with any other approach, the statutory provision would not fulfil its purpose. Examples are the defence that general terms and conditions were not delivered in good time, and the defence regarding the duty to make a timely complaint.

The duty to assert facts of the party claiming to have made the relevant notification in good time only comes into play once the other party has invoked forfeiture of rights (what I call a ‘conditional duty to assert facts’).

If the defendant pleads an exception, the court does not get around to assessing the legal relationship in dispute, whereas an affirmative defence is a defence on the merits of the dispute. A plea of res judicata qualifies as an exception, a plea of lack of interest as a defence on the merits.

Under Article 128(3) DCCP, the defendant can raise a defence against the grounds of the claim by statement of defence and raise an affirmative defence at the hearing.

The parties determine the scope of the legal dispute. The court will confine itself to assessing the points of fact on which the parties base their claim or defence (Article 24 DCCP). The court may not exceed the bounds of the legal dispute of the parties. Article 149 DCCP prohibits supplementation of facts: the court may not search for facts in the case file or in the parties’ submissions. Ex officio, the court may add to the points of law (Article 25 DCCP) if the relevant facts are used as the basis of the claim or defence for the application of a different rule.

Party autonomy entails that the parties, including the defendant, are free to decide whether or not to enforce their rights. The court depends on a defence to be raised by the defendant. It is up to the defendant to invoke a particular legal consequence and to allege sufficient points of law to that end. In that case, the defendant is entirely dependent on the skill and/or alertness of his attorney. If it is clear from the case documents that a certain affirmative defence could have been chosen, the court will be eager to do justice to the (real) legal relationship between the parties.

The Supreme Court’s Regiopolitie/Hovax judgment allows the court, under certain conditions and within the bounds of the legal dispute, to discuss a claim or defence with the parties. This would concern tie-ins found by the court in the contentions of both parties. It must be reasonable to expect that a party will invoke the rule of law and the parties will decide whether, on the basis of the discussion with the court, they will base their claim or defence on any of the points of fact that came up in that discussion..

Initially, only public policy cases required ex officio activity by the court. The Court of Justice in Luxembourg saw to it that consumer protection provisions must be applied and reviewed ex officio. Accordingly, even defendants who do not present a defence or who fail to appear in court are not deprived of the protection offered by EU law. This obligation has been extended by the Supreme Court to fundamental consumer-protection provisions of national origin. These proceedings are referred to as ‘consumer cases equivalent to public policy cases’. Ex officio, the defendant/consumer is handed an affirmative defence for which the defendant bears the burden of proof, as if he himself had invoked that rule of law.

Thus the court must assess ex officio whether a term in a contract is unfair.

In the Netherlands, European case law has created far-reaching obligations for claimants in consumer cases: the claimant must mention all applicable information at his disposal in the writ of summons. If he fails to do so, the court will deny the claim, both in adversarial proceedings and in proceedings in absentia.

If the claimant – excluding public policy cases and consumer cases equivalent to public policy cases - has complied with the required obligations, then in adversarial cases the court remains dependent on the presentation of an affirmative defence, but it may raise certain points that are in line with the legal dispute and thereby provoke defences; in subdistrict court cases, the judicial activity may be construed broadly.

In default cases other than public policy cases and consumer cases equivalent to public policy cases (both in cases with compulsory legal aid and in subdistrict court cases), the relief sought will in principle be awarded, unless it appears to the court to be unlawful or unfounded (Article 139 DCCP). The court may subject the claimant’s claim to further examination (Article 22 DCCP)..

Several authors are of the opinion that courts – excluding public policy cases and consumer cases equivalent to public policy cases - should also have the power to penalise the violation of protection provisions of mandatory substantive law outside the bounds of the parties’ legal dispute. Given the Supreme Court’s decision in St. Intermaris, there is as yet no prospect of ex officio application in mandatory law cases outside public policy and equivalent consumer cases. If the defendant does not appear in such proceedings, there is nothing to provoke.

Defences can be brought against a successor creditor as well as by a successor debtor. The debtor is entitled to the same evidentiary position vis-à-vis the new creditor as if he had been sued by his original creditor (Article 6:145 DCC). Defences of the principal debtor against the creditor that concern the obligation of the principal debtor may also be invoked by the successor debtor.

In a direct action, an injured party may turn directly to the liability insurer of the liable party (Article 7:954 DCC), but is only entitled to compensation if (and to the extent that) the insurer owes the insured a payment; statutory and contractual defences may limit or even exclude coverage.

In the direct action of Article 6 in conjunction with Article 11 of the Motor Insurance Liability Act (“MILA”), the insurer cannot invoke against the injured third party the defences it could have invoked against its own insured. Article 7:941(5) DCC does not apply analogously to the relationship between the injured third party and the insurer under the MILA.