Written by Krijn Lammers
Published on 29 October 2026
For a more detailed explanation of the principle of plurality, I would like to refer you to the publication by my colleague Juliette.[1] In short, it boils down to the fact that more than one creditor is required for a declaration of bankruptcy.
An inconsistent approach to the interpretation of the supporting claim required to satisfy the principle of plurality has raised a number of questions. The trigger for this was the TWI/HTC judgment, in which it was held that a forfeited penalty payment – which is a non-verifiable claim under Article 611e of the Code of Civil Procedure – may serve as a supporting claim.[2] By contrast, the earlier ABN AMRO/Berzona judgment held that unverifiable claims may not serve as support claims.[3]
The central question addressed in this article is: Is it legally defensible and normatively desirable that a penalty payment forfeited prior to bankruptcy may serve as a supporting claim despite the exclusion of verification under Article 611e of the Code of Civil Procedure?
The requirement of plurality is not explicitly included in the Bankruptcy Act, but has, through case law, become an established condition for a declaration of bankruptcy. The traditional justification for this is understandable. The purpose of bankruptcy is to distribute the debtor’s assets amongst the collective creditors.[4] Declaring a debtor bankrupt when there is only one creditor is therefore difficult to justify, as the assets cannot be distributed in such a case. A support claim is thus required to satisfy the plurality requirement. At the same time, it is precisely this threshold that has a weakness. A debtor can pay off small creditors whilst leaving one large creditor unpaid, simply to block a bankruptcy petition. What is intended as protection can thus become an invitation to abuse.
Against this background, the civil law penalty payment, as a supporting claim, takes on particular significance. A penalty payment is a financial incentive imposed by the court to enforce compliance with the principal claim.[5] If the judgment is not complied with and the principal claim remains unsatisfied, the penalty payment becomes due. This means that the penalty payment actually becomes payable.
As soon as the party against whom the order was made fails to satisfy the principal claim, a claim for payment of the penalty payment therefore arises. However, Article 611e of the Code of Civil Procedure (Rv) introduces an important proviso here: penalty payments forfeited prior to bankruptcy are not eligible for verification in bankruptcy proceedings. This rule is intended to prevent other creditors from being disadvantaged by a sanction that largely loses its deterrent effect in bankruptcy.[6] The penalty would then be borne by the estate. This leads to a reduction in the estate and, consequently, to a lower distribution to the collective creditors.
It is precisely on this point that the aforementioned inconsistent line of case law has emerged. In the Verhees/Octrooibureau Zuidjudgment, the Supreme Court accepted that forfeited penalty payments may serve as a supporting claim, provided that the petition for bankruptcy is not based solely on claims of this kind.[7] In ABN AMRO v Berzona, a more restrictive approach subsequently appeared to emerge, as unverifiable claims were deemed unable to serve as supporting claims. A non-verifiable claim cannot be lodged as a claim in bankruptcy proceedings and therefore does not entitle the creditor to a share in the distribution of the estate. The Supreme Court stated the following regarding non-verifiable claims as supporting claims:
‘[…] but that it is sufficient that the claim is one which can be lodged for verification in the bankruptcy proceedings so that the creditor may share in the proceeds of the liquidation taking place in that context […]’.[8]
This gave rise to the impression that forfeited penalty payments were excluded precisely because of Article 611e of the Code of Civil Procedure. However, in the TWI/HTC case, the Supreme Court has once again confirmed that forfeited penalty payments may indeed be counted as support claims.
This tension disappears when a clear distinction is drawn between the function of a support claim and that of a verifiable insolvency claim. Unlike a verifiable claim, a support claim serves a different purpose. It demonstrates that the debtor is in default towards several creditors and is therefore in a state of having ceased to pay. From that perspective, it is entirely justifiable that a forfeited penalty may serve as a support claim to satisfy the plurality requirement, even though it does not form part of the liabilities.
It is precisely for this reason that the admission of forfeited penalty payments as ancillary claims is desirable. As long as the Supreme Court adheres to the plurality requirement, care must be taken to ensure that this requirement does not harden into a formal barrier behind which debtors can strategically hide. Allowing forfeited penalty payments strengthens the position of creditors. Furthermore, it does justice to the authority of court rulings by ensuring a consistent approach is adopted. Finally, it enhances legal certainty, as it prevents the debtor from deliberately frustrating the payment of the penalty without facing any consequences. At the same time, this need not be at the expense of other creditors, provided it remains clear that the penalty payment is not, by its very nature, an ordinary claim subject to verification. In this way, the distinction between the distribution of the estate and a declaration of bankruptcy is not erased, but rather made clearer.
The most convincing conclusion is therefore that the forfeited penalty, in addition to a regular principal claim, must be able to count as an ancillary claim for the purposes of the plurality requirement. This is not only legally defensible but also normatively desirable. It brings coherence to a body of case law that has for too long sent out conflicting signals, and prevents insolvency law from undermining its own purpose. Insolvency proceedings thus remain a collective instrument, but one that is resistant to formal opportunism and better aligned with the reality of insolvency practice.
[1] J. Poelman, ‘Declaration of bankruptcy and the principle of plurality’, 16 October 2025.
[2] Supreme Court 17 November 2013, ECLI:NL:HR:2023:1569, para. 3.1, TvI 2024/18, (TW/HTC). [3] Supreme Court 11 July 2024, ECLI:NL:HR:2014:1681, para. 3.4.2, NJ 2014/407, (ABN AMRO/Berzona). [4] Supreme Court 11 July 2014, ECLI:NL:HR:2014:1681, para. 3.4.1, NJ 2014/407, (ABN AMRO/Berzona). [5] Article 611a of the Code of Civil Procedure. [6] Parliamentary Papers II 1975/176, 13788, No. 4, p. 20. [7] Supreme Court 20 September 1996, ECLI:NL:HR:1996:ZC2146, para. 3.1, NJ 1997/640, (Verhees v Octrooibureau Zuid) [8] Supreme Court 11 July 2024, ECLI:NL:HR:2014:1681, para. 3.4.2., NJ 2014/407, (ABN AMRO v Berzona).
