Incasso : de rechtsverhouding van de opdrachtgever met de incassant en diens beroepsaansprakelijkheid

Abstract

Debt collecting is a rather unknown phenomenon. Even insiders are not always aware of the (exact) juridical consequences. For instance, which obligations arise from the legal relationship between the client and the debt collector and what does the professional liability imply. The author has tried to give some answers. Important conclusions are that the collection-agreement is a mandate and that the rules of conduct which refer directly to the execution of the activities, have effect on the agreement by way of the duty of care. The written and unwritten rules of conduct for some groups of debt collectors even effect other groups of debt collectors. Because of this the civil duty of care is more or less the same for all debt collectors. This is for example the case with respect to the obligation to make interim payments and to provide interim information. These obligations are also important at the moment the agreement comes to an end, especially when the debt collector has to render account to the client. Throughout the execution of the agreement the debt collector might act wrongly. This does not automatically mean that the debt collector has to pay compensation. The client must suffer a loss. Next to that a causal connection between the fault and that loss is required. In most cases the client has the burden of proof, which in practice is very difficult. The author therefore argues in favour of applying the doctrine of the loss of chance. This way, the client is compensated in case the debt collector acts wrongly.