You have provided a private loan to a family member, friend or someone else and want to reclaim that money? Here you can read when a private loan is legally valid, whether you as a borrower can claim the money that would be lent to you, whether you as a lender can claim the money you have lent, what steps you need to take to get the money back and what to do if the loan amount is not repaid. In another article we explain when a private loan expires . Here you can request a model letter with which you can claim money on loan,
Written or oral loan agreement
A (private) loan can be agreed verbally or in writing. Although an oral agreement is of course not wise (in connection with evidence), an oral loan agreement is legally valid.
Oral agreement when the lender is a natural person
There is an exception to the legal validity of the oral loan agreement. If the lender is a natural person who is not acting in the course of his profession or business, the lender is not bound by the loan as long as he has not committed himself in writing or as long as he has not provided the money to the borrower . This means that if the lender is a natural person and he has only made verbal agreements with the borrower and has not yet actually lent the money, the borrower cannot oblige the lender to provide the loan, even though there is verbal agreement about this. Once money has been lent, there is a legally valid oral loan agreement that the parties must adhere to.
Below is an example to clarify the above :
Carlo's best friend, Jochem, is getting a divorce and during the evening in the pub Jochem tells Carlo that he is on black seed and has no money to pay his lawyer. Carlo, who feels sorry for Jochem and knows how important it is that the divorce is continued, agrees with Jochem that Jochem may borrow € 10,000 from him and that Jochem will repay the money when the marital home has been sold and the equity has been released. They agree that Carlo will pay Jochem the money within a week. The next day Carlo Jan speaks to a mutual friend of his and Jochem. Jan tells Carlo that Jochem has a new girlfriend and that he and his new girlfriend are going to Bali the following week, a trip that Jochem gave her as a present. When Carlo heard that, he didn't want to lend any more € 10,000 to Jochem. He wanted to help Jochem because he felt sorry for him, but now that he had heard that Jochem had spent his money on a trip to Bali with his new girlfriend, Carlo prefers to keep the money in his savings account.
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Can Jochem now oblige Carlo to lend that € 10,000? No that is not possible. Because this concerns a natural person who has not committed himself in writing (an agreement has only been reached verbally) and who has not yet made the money available, Jochem cannot enforce payment of the loan. Now suppose that Carlo had agreed on behalf of the BV of which he is director that Jochem could borrow the money from that BV, then Jochem would be able to enforce payment of the loan provided he had proof of the existence of that oral loan agreement. For example, there should be witnesses who can confirm that Carlo has agreed a loan with Jochem on behalf of the BV.
Now suppose that Carlo had already paid the money to Jochem and then had heard about the trip to Bali, could he then reclaim the money from Jochem and take the position that the loan is not legally valid because it is an oral agreement of money loan? No that is not possible. Once the money has been paid out, a loan agreement is concluded. The law states that the lender who is a natural person is not bound by an oral loan agreement as long as the money has not been paid out. However, as soon as the loan has been paid, there is an (oral) loan agreement. Carlo can only claim the money when Jochem's marital home has been sold. Jochem must be able to prove the latter (that it has been agreed that repayment would then have to be made). If Jochem cannot prove this, the following applies with regard to that claimability.
The due date of the loan, when must it be repaid?
If no agreements have been made about the due date and the repayment of the loan applies that the person who has borrowed the money is obliged to return the loan amount within six weeks after the lender has notified to go . We have prepared a model letter for you that you can use to claim the loan.
So if you have lent money and want to have that money back, you, if no agreements have been made about the repayment, a term persist for six weeks. The person who borrowed the money from you must take six weeks time to pay it back. Please note: this does not apply if you have agreed on a term within which the private loan must be repaid. In that case, that term simply applies and you do not have to allow another six weeks for the repayment.
When you claim the private loan, it is wise to also: immediately declare the extrajudicial costs. When the borrower If you are a natural person, you must first declare those costs before you can claim it. You can read more about this in another article .
Sometimes the lender and borrower agree that the private loan will be repaid when the borrower is able to do so. About that provision the necessary discussion. Because when is the borrower able to repay private loan? In principle, the burden of proof lies with the lender. The borrower will settle the dispute (that he is unable to pay) must be well substantiated. If the parties remain of the opinion differences, the court can determine the time of payment. The law says the following about this: “ If it has been agreed that a borrower will repay the borrowed money, when he is able to do so, the judge will, depending on the circumstances, determine the time of the claimability .”
To pay interest or not to pay interest on a private loan if no agreements have been made about interest?
If an interest has been agreed, it is of course clear: in that case the agreed interest must be paid. But what if the parties have not made any agreements about the payment of interest? Or what if it has been agreed that interest must be paid, but no interest rate has been agreed for the private loan?
If both parties (both borrower and lender) are natural persons who are not acting in the exercise of their profession or business, interest on the private loan is only due if this has been agreed in writing. Oral agreements on interest are therefore not legally valid in that case . Interest must only be paid if interest on the private loan has been stipulated in writing.
In all other cases (i.e. in those cases where both parties are not natural persons) interest must be paid unless the parties have agreed that no interest has to be paid.
If the parties have not made agreements about the level of the interest on the private loan, the statutory interest must be adhered to.
In the case of Carlo and Jochem, therefore, no interest has to be paid because they have not agreed to this in writing. Now suppose that Carlo had lent the money from his BV, then Jochem would have to pay the statutory interest to the BV. After all, it was not agreed that no interest had to be paid and no interest rate was agreed.
What do I have to do to claim the private loan and what can I do if the borrower does not repay the loan voluntarily?
To claim the private loan, you can send a letter to the lender in which you request him to return the borrowed money within six weeks Pay. Do not forget to claim the extrajudicial collection costs .
If the borrower refuses to repay the loan, you will procedure to get your money back. Only when there is a verdict is in which the court has ruled that the borrower must pay the private loan to you must repay you can force the borrower to repay the loan to you Pay. You can then have the judgment seized. If your claim (the private loan, the interest and the extrajudicial costs together) are less than € 25,000, you can start and conduct the procedure yourself . Is the If the amount exceeds € 25,000, you will need a lawyer. We use for these kinds of procedures fixed prices .
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