domicile and residence in dutch civil law

Domicile and habitual residence

The place of domicile is the place where a person is officially registered at a specific address according to the municipal personal data records or, where it concerns an enterprise or legal person, according to the commercial register. This official address doesn’t have to be the address where the registered person actually lives or resides. The habitual residence of a person is the place where he has his home, in the sense that he usually lives and sleeps there, and that he returns to it in general after he has gone to work or to other places. The habitual residence of a person has to be established on the basis of the actual facts. As a rule a person habitually resides at the same address as the one where he is officially registered. His official domicile is in that case also his habitual residence. Therefore the words 'domicile' and 'habitual residence' may - at least within the Dutch legal order - be regarded as synonyms in order to determine which court has territorial jurisdiction. When Treaties or European Regulations are applicable the meaning of the term 'habitual residence', as used in that international regulation, is of course decisive.


Domicile of persons without (full) legal capacity

First of all an important remark has to be made about the domicile (place of residence) of persons lacking (full) legal capacity, like minors and adults who are placed under guardianship of a legal representative. A minor follows the domicile of the person who exercises authority over him. An adult placed under guardianship follows the domicile of his legal guardian. When the plaintiff wants to start a lawsuit against a minor or an adult placed under guardianship he must file his legal claim at the court of the place where the legal representative of this minor or adult resides. If both parents exercise authority over their minor child jointly, but they do not have the same domicile, for example because they are divorced, then the child follows the place of domicile of the parent with whom it actually lives or had lived lately (Article 12 paragraph 1 of the Code of Civil Procedure). But please pay attention. When the minor moves away to a dwelling of his own, while he is still under age, the place of domicile of his legal representative remains decisive. But when the minor has come of age (at the age of 18 years) and leaves his parental home, he must be summoned at his own domicile, even when the legal claim relates to a situation which happened when he was still under age. Crucial is therefore not the moment on which the agreement came to existence or the tortious act occurred that resulted in the legal claim , nor the moment on which the claim itself came to existence (for example the moment that the minor failed to perform his obligations), but solely the moment on which the plaintiff effectively starts legal proceedings against him by serving a writ of summons.

When one or more assets of an adult are placed under protective administration, this adult follows the place of domicile of his legal administrator, but only as far as the legal claim concerns the judicial supervision of property (Article 1:12 paragraph 2 DCC). Someone for whom a mentor has been appointed, follows the place of domicile of his mentor to the degree that the legal claim relates to his mentorship.

One has to be aware that an adult who has been placed under guardianship and whose property is subject to a protective administration or for whom a mentor has been appointed, may actually live independently at his own residence. Nevertheless, as long as the protective legal measures apply to him, his actual residence is of no importance to determine in which judicial region legal proceedings must be commenced, this is to say as far as the legal claim relates to the protective measure or the protected property. In such events only the place of domicile of his legal representative, administrator or mentor indicates which court has territorial jurisdiction over a legal claim against him. In all other events the habitual residence of the defendant himself is decisive. When a person under mentorship, for instance, has bought a car, the seller must sue him before the court of his habitual residence and not before the court of the habitual residence of his mentor, since this juridical act has no relation to his mentorship whatsoever.


Office as additional domicile of an entrepreneur

An entrepreneur pursuing a commercial business, not in corporate form, therefore either as a sole proprietor of a venture or as someone who practices a profession on his own for profit and to earn a living, may have two or more different domiciles. Firstly the place where he has his habitual residence as a natural person. Secondly the place where his business keeps its head office. As far as the legal claim against him relates to activities that were performed in the course of his business or profession, either by himself or in his name, the plaintiff may therefore bring his lawsuit to the court of the place where this entrepreneur has his habitual residence or to the court of the place where the head office of his business is located (Article 14 DCC).

Not only the head office of the business may be regarded as the domicile of the defendant, but each branch of that business with its own office, provided that the activities from which the legal claim results, relate to this specific branch. So in that case the plaintiff may choose from three different domiciles: de habitual residence of the natural person, the head office of his business and the office of the branch with which the legal claim is actually connected. Large businesses often have several branches, each with its own branch office. If the activities from which the legal claim results, relate to this specific branch, the plaintiff may therefore also bring the case against this natural person before the court of the place of that specific branch office. But not every branch meets this requirement. There must be some kind of office at this place. For the purpose of Article 14 DCC, for instance, a warehouse or depot without a significant office cannot be regarded as a branch office.

It is, of course, possible that the habitual residence and head office of the business of this natural person and/or the office of a branch are located in the same town or at least in the same district or subdistrict. In that situation it makes no difference for the territorial jurisdiction of the court that the entrepreneur has two or more domiciles in the meaning of Article 1:10 and 1:14 DCC. And, of course, not all entrepreneurs have two or more domiciles. An independent solicitor whose law office is attached to his house, has merely one domicile, since the address of his head office and that of his habitual residence are the same.


Domicile of a legal person

The domicile of a legal person is the municipality where he has his official seat according to law and the applying articles of association (Article 1:10 paragraph 2 DCC). Consequently a legal claim against a legal person can be brought before the court in whose district or subdistrict that municipality is located. But knowing the name of this municipality alone is not enough to actually sue that legal person. The writ of summons must be served on the legal person at a specific address, where representatives of the sued legal person are able to receive it. Nevertheless it’s not hard to find out which court has territorial jurisdiction over a legal claim against a legal person. All legal persons are obliged to register their head office at the Dutch Trade Register, kept by the Chamber of Commerce. Foreign companies and legal persons with a by-office in the Netherlands are obliged to register the address of this office there too. Everyone is allowed to inspect this register to determine the address of the head office (or by-office) of a (foreign) legal person. Legal persons are also compelled to mention their address on their stationary. Usually they point out their address too in the contracts they conclude. The court of the place of the head office of the legal person is always competent. Knowing the address of this had office, means knowing the court with territorial jurisdiction over a legal claim against the legal person.

But companies usually have more branches or offices. In that event the legal person may also be summoned before the court of the place of this branch office, provided that the legal claim is connected with activities of the sued legal person that were instigated from this by-office (Article 1:14 DCC). A bank not only has a head office, for example in Amsterdam, but also many branches spread over the country. So when a plaintiff, who has done business with a branch of this bank in Eindhoven, wants to sue the bank before the District Court, he may choose between the District Court of Amsterdam (head office) and the District Court of ’s-Hertogenbosch, since the actually involved branch office is located in Eindhoven, a city falling under the judicial territory of the District Court of ’s-Hertogenbosch. The judicial territory – thus the court district - of this last court is subdivided into four subdistricts: ’s-Hertogenbosch, Eindhoven, Helmond and Boxmeer. When the plaintiff, because of the applying rules on subject-jurisdiction, has to file his a lawsuit at a Subdistrict Court, he may choose between the Subdistrict Court of Amsterdam (head office) or the Subdistrict Court of Eindhoven (relevant branch office). Surely this bank will have branches as well in other cities, like Rotterdam or the Hague. But the plaintiff cannot bring his case to a court in one of these cities, given that his claim is not connected with the bank’s branch office in Rotterdam or the Hague.

Sometimes it looks as if a person is dealing with a branch office of a large company, where in fact this is the head office of an independent legal person, being a subsidiary company of a controlling parent company. If the agreement, from which the legal claim arises, has been concluded only with this subsidiary company, then solely this individual counterpart can be hold responsible. The parent company is not involved. Neither are the other subsidiary companies acting under the same brand name, but as an independent legal person. This means that only the court of the place of the seat or head office of the subsidiary company has territorial jurisdiction over claims that are filed against this independent legal person. The Rabobank is, for instance, one of the largest banks in the Netherlands. In almost every town you’ll find an office of this bank. But the Rabobank is not a private limited company with several dependant branch offices, like the other Dutch banks. It’s a cooperative with various members. The 160 local offices of this bank are its members. Every local office forms an independent cooperative of its own, therefore an independent legal person which is registered as such at the Dutch Trade Register. A legal claim against a local Rabobank has to be filed at the court of the place where this bank has its seat and head office. The headquarters of the whole Rabobank organisation (‘Rabobank Nederland’) at Utrecht, play no part in determining the territorial jurisdiction over claims against such a local subsidiary.


Domicile of a commercial partnership

Still commercial partnerships in the Netherlands have no legal personality, although a new law will be implemented soon, which will have the effect that certain types of commercial partnerships will become legal persons.

Commercial partnerships are in fact obligatory agreements between the participating partners. Only natural persons and legal persons can be a party to such an agreement. The agreement itself has no capacity of rights. It neither is able to perform legal acts in its own name. It can’t be the proprietor of any property rights, nor the debtor of any obligations. Only the participating partners can. Nevertheless it’s common practice to perform legal acts in the name of a commercial partnership. This then only means that all participating partners are – jointly – a party to the legal act performed in the name of their commercial partnership. Legally the rights and debts from that legal act must always be imputed to the joint participating partners. The claims and other rights belong to them jointly, in the sense that each of them has acquired a share in it, since the commercial partnership itself is not able to possess anything. And only the participating partners are liable for the debts out of these legal acts. The creditor of the commercial partnership can’t recover his claim from the property of that partnership, in view of the fact that this partnership has no property of its own.

Because a commercial partnership doesn’t have legal personality, it has no domicile or office. But its head office must be registered at the Dutch Trade Register. If the legal claim of the plaintiff relates to an activity that was performed in the name or on behalf of the commercial partnership, then all participating partners will be responsible for it. And automatically they all have an office at the address where the head office of their commercial partnership is located. This means that the plaintiff by virtue of Article 1:14 DCC may sue all liable partners before the court of the place where this head office is situated, irrespective where the partners themselves have their habitual residence as a natural person or their head office as a legal person. Nevertheless, during the proceedings each individual partner is treated as an independent defendant. If the plaintiff wants, he may as well bring his claim against an individual partner before the court of the place where this partner has his habitual residence or, if it concerns a legal person, his head office. If that happens, the sought court will pursuant to Article 107 of the Code of Civil Procedure also have territorial jurisdiction over the legal claims against the other participating partners, provided they are filed at the same time.

When the plaintiff has acted with a partner in a partnership (maatschap) he has to be prepared. The law presumes that a partner in such a partnership can only commit himself to an agreement, and not the other partners involved in the partnership. So the plaintiff who has made a deal with one of the partners can only hold him responsible. The other partners aren’t liable for this agreement, even when the transaction is closely connected with the firm they practice together. A claim against this individual partner, the only one liable for it, can be brought before the court of the habitual residence (if the defendant is a natural person) or of the head office (if the defendant is a legal person) and, provided that the legal relationship from which the legal claim results is connected with the partnership, the court of the head office of this partnership. One must assume that in such a situation that partner will also have the head office of his business there. Only when the acting partner has got a mandate of the other partners to close a deal in the name of the partnership …., all partners will be committed jointly. But contrary to a partnership x and a partnership y, this doesn’t mean that all (managing) partners are joint and several liable for the obligations of the partnership. Each of the partners in a partnership m will by liable for an equal share in the total debt, unless the indebted performance is indivisible. If the plaintiff claims the payment of a sum of money (divisible performance) he can only file a legal claim against each individual partner for his share in the debt. Of course he is allowed to bring the case before the court of the head office of the partnership, since all partners are involved. He may also sue each individual partner for his share before the court of his habitual residence (natural person) or his own head office (legal person). Pursuant to Article 107 of the Code of Civil Procedure he can file the claim at the court of the habitual residence or domicile of one of the partners and at the same time call the other partners to this court, since the legal claims against each of them are closely connected with each other.

When the new law will come into force a commercial partnership may obtain legal personality by means of a notarial deed. Such a commercial partnership will have property of its own and it may perform legal acts for which it is responsible itself. But the legal personality of a commercial partnership will not be the same as that of other legal persons. Where a director or shareholder of a public or private limited company is not liable for the debts of this legal person, the participating partners in a commercial partnership with legal personality still are. Under the new law each individual partner is, besides the commercial partnership, joint and several responsible for all debts and obligations of the commercial partnership. A creditor of a commercial partnership with legal personality may therefore not only claim performance of this legal person, but also of each individual partner, and this for the full debt. So with regard to the question which court has territorial jurisdiction over a legal claim against a commercial partnership with legal personality, the situation will in fact remain unchanged. The place of the head office of the commercial partnership still will determine the competent court, both for the claim against the commercial partnership itself and for the claim against one or more participating partners. This last result, however, is not achieved because the partners still have an office themselves at the address of the head office of the commercial partnership (Article 14 DCC), but because the claim against them is so closely connected with that against the commercial partnership that a joint consideration by one and the same court is justified (Article 107 Code of Civil Procedure). In addition, where a legal claim is not filed against the commercial partnership, but merely against an individual partner personally, his habitual residence remains significant.