Annotation to the ruling of the Amsterdam Court of Appeal of 22 December 2015, TvHB 2016/17


Two natural persons leased business premises. The lessees were joint contractual lessees and under the lease they were jointly and severally liable vis-à-vis the lessor for all obligations arising from the lease. One of the lessees was declared bankrupt, following which the lessor gave notice to terminate the lease to both lessees under Section 39 of the Dutch Bankruptcy Act. The Court of Appeal considers that on account of the indivisibility of the lease, the lessor is in principle authorised to give notice of termination. Based on the indivisibility of lease law, the non-bankrupt lessee cannot rely on security of tenure, according to the Court of Appeal. The Court of Appeal subsequently does consider that it must also be examined whether the notice of termination vis-à-vis the non-bankrupt lessee constitutes an abuse of power. Eventually, the notice of termination by the lessor vis-à-vis this non-bankrupt lessee does not stand up to scrutiny because the notice of termination is qualified as an abuse of power.

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