Limitation period for spouse’s power to annul legal acts performed without consent
For certain legal acts, one spouse requires the consent of the other spouse. If this consent is not given, the other spouse may annul the legal act. In short, this applies to decisions regarding the family home, gifts, security (such as guarantees) and hire purchase. In an earlier judgment (concerning the Dexia share lease affair), the Supreme Court already ruled that consent is also required for securities leasing, because this is in fact a form of hire purchase (or purchase by instalments). A limitation period of three years applies to invoking annulment. The Supreme Court recently handed down a judgment on the question of when this period begins to run. This judgment is discussed in this article. This judgment also relates to the Dexia share lease affair.
Legal provisions spouse’s consent, annulment and limitation period power of annulment
The cases in which a spouse requires the consent of the other spouse are listed in Section 1:88 of the Civil Code. In 2008, the Supreme Court ruled that securities leasing also falls under this provision. Article 1:89 of the Civil Code stipulates that the non-acting spouse may annul a legal act (such as entering into a securities leasing agreement) that has been performed without the necessary consent. Upon annulment, the agreement is deemed never to have existed. Article 3:52(1), preamble and under d, of the BW stipulates when the limitation period begins and ends. The legal claim to invoke annulment expires:
‘three years after the power to invoke this ground for annulment has become available to the person entitled to it.’
This phrase could give rise to three possible starting points:
- The moment at which the legal act is performed (in the case of securities leasing, this is the moment at which the agreement is concluded);
- The moment at which the other spouse becomes aware that the legal act has been performed;
- The moment at which the other spouse is both aware that the legal act has been performed and aware of the right (i.e. the legal authority) to annul the legal act. This therefore also requires legal knowledge and insight.
It was already clear that moment 1 did not apply. However, the Supreme Court has now clarified whether moment 2 or moment 3 applies.
Securities leasing without the consent of the spouse
The case in this matter was fairly straightforward. In 1999, a husband entered into a share leasing agreement with (a legal predecessor of) Dexia, but without the consent of his wife. The payments for the share lease agreement were made from a joint account. In February 2006, the spouse invoked annulment. Dexia invoked the statute of limitations.
Court of Appeal’s ruling on limitation period for right of annulment
Both the District Court and the Amsterdam Court of Appeal ruled that Dexia could not invoke the limitation period. The District Court declared that the lease agreement had been validly annulled and ordered Dexia to repay the sums of money. The Court of Appeal upheld this judgment.
The Court of Appeal first referred to a judgment of the Supreme Court of 10 July 2015, in which the Supreme Court ruled that the limitation period should only start to run when the non-acting spouse becomes aware of the existence of the lease agreement. The moment of awareness of the legal right to invoke the annulment therefore did not play a role. However, the Court of Appeal considered that, after 2015, views on when actual awareness can be assumed to exist had evolved. From a judgment of 12 January 2024 of the Supreme Court, the Court of Appeal concluded that it has also become important when the entitled party had the knowledge and insight necessary to consider taking measures in response to the facts. According to the Court of Appeal, the burden of proof therefore rests with Dexia to demonstrate that, prior to 13 March 2000, the spouse was not only aware of the lease agreement, but also had the knowledge and insight to understand that her consent was required. According to the Court of Appeal, Dexia has failed to do so.
The date of 13 March 2000 is relevant because that was when a class action was initiated, which suspended the limitation period. Incidentally, it is difficult to imagine that the spouse had knowledge and understanding of the right to invoke annulment before that date. The Court of Appeal noted that it was not until 2002 that the view that share leasing is in fact hire purchase became public. And it was not until a judgment of 28 March 2008 that the Supreme Court confirmed this.
The limitation period commences at the moment when the spouse becomes aware of the legal act
Dexia is appealing to the Supreme Court. Dexia’s complaint is that the Court of Appeal failed to recognise that, for the limitation period to commence, it is sufficient that the non-acting spouse is actually aware of the lease agreement. The Supreme Court considers the complaint to be well-founded. The Court of Appeal’s ruling, to the effect that it is relevant that the non-acting spouse had the knowledge and understanding that the conclusion of the agreement required his or her consent, is incorrect. Requiring that such knowledge and understanding be present would not be in accordance with the proper course of legal transactions.
Furthermore, the Supreme Court notes that the case law of the Supreme Court to which the Court of Appeal referred does not alter this. According to the Supreme Court, that case law also refers to actual knowledge of facts and circumstances relating to the existence of damage.
When are knowledge and understanding of legal position important?
It is remarkable that the Court of Appeal believed that the Supreme Court had changed course, but the Supreme Court indicates that this is not the case.
In the judgment of 12 January 2024, to which the Court of Appeal referred, the Supreme Court ruled:
‘When assessing whether the injured party was actually aware of the inadequate or incorrect conduct of the liable person, the court must take into account whether the injured party had the knowledge and insight to be able to assess the soundness of the conduct.’
This case concerned incorrect advice that had been received. It was only when the injured party realised that it had received incorrect advice that it actually became aware of the negligent conduct of the liable person and realised that damage had been caused as a result of that negligent conduct.
Start of the limitation period for the power of revocation in the case of a guarantee
As mentioned above, a spouse sometimes also needs the consent of the other spouse when entering into a guarantee. This applies to private guarantees. Without consent, the guarantee is voidable. You can read more about the difference between a commercial and a private guarantee here.
In view of the Supreme Court ruling discussed above, we can assume that the limitation period for invoking the power of annulment also commences at the moment when the other spouse becomes aware of the guarantee. The moment at which that spouse first becomes legally aware of the power to invoke annulment is irrelevant.
Lawyer Rotterdam
If you would like advice on securities, such as guarantees, please contact Peter de Graaf.
The judgment discussed concerns Supreme Court 18 July 2025, ECLI:NL:HR:2025:1168.
