Set-off is one of the most commonly used instruments in Dutch trade. When your company has a claim against a counterparty and a debt at the same time, it is obvious to offset the two items against each other. But what if your claim is now time-barred? Can you then still set off against a debt that only arose after that limitation period? The Supreme Court issued an important judgment on 23 January 2026 that answers this question. The answer is clear and has direct implications for the way companies design their receivables policy and contract management. For any company dealing with long-term contracts, periodic payments or complex set-off positions, this judgment is indispensable.
The case in brief
The dispute was between energy supplier Ennatuurlijk and Stichting ReeshofVerzet (SRV), an interest group that stood up for consumers of district heating in Tilburg. Ennatuurlijk has supplied around 24,650 homes in Tilburg with heat through its heat network since the 1980s. From 2012, Ennatuurlijk charged a separate item on its invoices in addition to the fixed and variable costs: the so-called connection fee. Before that, this contribution was already part of the standing charge, but without being visible to consumers on the invoice. SRV claimed that there was no legal basis for charging the connection fee and that consumers had been paying undue amounts for years.
Ennatuurlijk defended itself, arguing that the consumers' claims were time-barred and that SRV therefore no longer had an interest in its collective action. The Court of Appeal of 's-Hertogenbosch rejected that prescription defence by referring to Section 6:131 of the Civil Code. According to the court, limitation did not preclude set-off against a counterclaim that the other party has or will have against the consumers. The Supreme Court ruled otherwise.
Ruling: Supreme Court 23 January 2026, ECLI:NL:HR:2026:93 (with parallel case ECLI:NL:HR:2026:94 delivered at the same time). Opinion of Advocate General T. Hartlief of 12 September 2025, ECLI:NL:PHR:2025:970.
What does the law say about set-off and prescription?
To fully understand the meaning of this judgment, it is important to look at two sections of the law in relation to each other. Section 6:127(2) of the Civil Code stipulates when a debtor is authorised to set off. That power exists when he has a performance to claim that corresponds to his debt towards the same counterparty, and he is authorised both to pay the debt and to enforce payment of the claim. After a claim is time-barred, what is known as a natural obligation remains. That is an obligation that legally still exists, but can no longer be enforced in court. Thus, in principle, the power to set off that claim lapses, as the requirement of enforceability is no longer met.
Article 6:131(1) of the Civil Code makes an exception to this principle. This provision implies that the authority to set off does not end by prescription of the legal claim. The rationale behind this is practical: a person who is authorised to set off will often already consider himself to be liberated. That person does not think of actually issuing a statement of set-off until the moment the other party sues him for payment. It would be unreasonable for inaction until that moment to void the power of set-off.
The gist of the judgment: an existing right continues to exist, but a new right does not arise
The court of appeal had interpreted Section 6:131 of the Civil Code broadly and ruled that prescription never precludes set-off, even when the debt with which set-off is to be made only arises after the prescription. The Supreme Court ruled that this reading was generally incorrect.
The Supreme Court makes a clear distinction. Section 6:131 (1) of the Civil Code protects a power of set-off that already existed at the time the claim was time-barred. If you were already authorised to set off at that time, that authority remains intact despite the prescription. However, the provision does not create a new authority to set off an already time-barred claim against a debt that only arose after the completion of the limitation period. For the latter case, the requirement from Section 6:127(2) of the Civil Code applies in full: you must be authorised to enforce payment of the claim. With a time-barred claim, that is precisely no longer the case.
This distinction is crucial. The moment at which the counterclaim arises compared to the moment at which the limitation period commences determines whether set-off is possible. If the counterclaim (the debt you want to set off against) already existed before the limitation period commenced, you may set off. If the debt only arose afterwards, you cannot.
What does this mean for your business in practice?
The implications of this judgment extend far beyond the specific dispute over district heating. Any company working with term contracts, periodic billing or long-term commercial relationships may face similar situations. Think supply contracts, licence agreements, rental relationships or framework agreements with periodic billing.
If your company has a claim against a business relation and that claim is in danger of being time-barred or is already time-barred, after this judgment, you can no longer assume that you can simply set off that claim against a new debt at a later point in time. The Supreme Court has made it clear that a time-barred claim is not an automatic means of set-off for future debts. This means that active claim management and timely interruption of prescription are more important than ever.
The same applies in reverse, of course. If your company is faced with an opposing party trying to set off a time-barred claim against a debt that only arose after the limitation period, this judgment offers a robust defence. Indeed, the Supreme Court has confirmed that such a set-off is not allowed.
The second lesson: unclear contracts will cost you dearly
Although the Supreme Court in this judgment dismissed Ennatuurlijk's other complaints under section 81 RO (and thus did not give further reasons), the underlying court judgment contains a valuable lesson about contractual clarity that is also relevant in business relationships. The court ruled that the supply agreement did not provide a legal basis for charging a connection fee because it was not sufficiently clear from the contract, the welcome letter and the general terms and conditions that consumers owed this fee. The court applied the contra proferentem rule: in case of doubt about the meaning of a clause, the interpretation most favourable to the other party prevails, and lack of clarity is for the account of the person who drafted the clause.
This principle does not only apply between professional parties and consumers. Even in pure business-to-business relationships, the Haviltex measure plays a central role in the interpretation of contracts. When written documents are unclear and there was no personal contact prior to the conclusion of the contract, special weight is given to what the parties mutually expressed in writing. A professional party using unclear general terms and conditions runs the risk of a court interpreting those terms in favour of the other party.
How do you protect your position?
This judgment highlights the importance of taking a proactive approach in three areas.
First, claims management within your company deserves structural attention. Monitor limitation periods carefully and interrupt limitation in time by means of a letter of formal notice or an act of prosecution. As soon as a claim is time-barred without a right of set-off existing at that time, you lose the possibility of later setting off that claim against newly arising debts. This can have significant financial consequences, especially in long-term contractual relationships.
Secondly, it pays to actively chart netting positions. If your company has both claims and debts against the same counterparty, it is wise to issue a netting statement in good time. Under Section 6:129 of the Dutch Civil Code, set-off has retroactive effect to the moment the authority to set-off was created. By setting off in good time, you can prevent prescription from throwing a spanner in the works.
Thirdly, have contracts and general terms and conditions reviewed periodically for clarity.
So that you can continue
The interplay between prescription, set-off and contractual clarity is complex. This judgment shows that seemingly safe assumptions about powers of set-off do not always hold up in practice. TK's Corporate & Commercial Litigation team has in-depth expertise in contract law, dispute resolution and litigation. Whether assessing set-off positions, drafting watertight agreements, interrupting limitation periods or litigating a dispute with a contracting party, TK's Corporate & Commercial Litigation team will be happy to help you. Feel free to contact Michiel Teekens or one of the other specialists from the team.
