Introduction
On 1 October 2012, the financial assistance prohibition for BVs (private companies with limited liability) was repealed. Under the new regime, a BV is in principle free to provide financial assistance to third parties for the acquisition of its shares provided that the management board determines that the assistance is in the company's interest and subject to the usual restrictions (primarily the voidable preference rules and the ultra vires rules). The assistance can take the form of, for example, granting guarantees, security or loans.
Two recent judgments, Roeffen q.q./Jaya BV and ING Commercial Finance/ Aukema q.q., limit the scope of, and provide more clarity on, the two abovementioned restrictions and on the duty of care of lenders in the Netherlands more generally, in particular where the financing is granted in the context of a leveraged buyout.
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