Indemnity

Being called upon is never fun. Even more annoying is it, when the claim for liability is possibly (partly) justified. If that’s the case then there possibly is a liability for compensation.

In some cases the debtor can pass on the negative consequences of a liability for compensation (partly) to a third party. This, for example, can be the case when a subcontractor of the debtor causes the liability.

Next to the possibility to start an independent procedure against this third party, the debtor can also involve the third party in the “main procedure”. He can call upon that third party in “indemnity” or a third-party action. Theoretically will this mean that two procedures run alongside of each other (the main procedure and the third-party action) but they are being dealt with – by reason of connexity - mainly at the same time.

To be able to add a person as a third party, the debtor has to request permission (authorization) of the judge. The debtor has to request this permission before he states his defence. At a later time this isn’t possible anymore. For that reason a third party can’t be added first as a third party.

Before the judge responds to the request, the creditor gets the chance to speak up about the request. Because most creditors don’t object against a third-party action, they mainly refer to the judgment of the judge.

When the permission to add a third party to the action has been granted by the judge to the debtor, the debtor can involve the third party in the procedure by a third-party summons. In general the summons claims that the third party is being sentenced to pay the debtor the same amount as the debtor needs to pay to the creditor.

In the past it was so that the creditor could be sentenced to the costs of the proceedings of the third party to an action. Since some time now that isn’t the case anymore. Ever since a debtor has to assess his chances in the procedure against the creditor well. When the judge vindicates the debtor against the creditor, he will be sentenced to the costs of the proceeding of the third party to an action, whereas the third party – in hindsight - has been summoned unnecessary.