Settlement reached — but can you enforce it immediately? The Dutch Supreme Court clarifies

A settlement is not a blank cheque for immediate enforcement

Imagine: after a difficult share transaction, you finally reach a settlement with your former business partner. The terms are recorded in the court's minutes of the hearing. Among other things, a confidentiality clause is included: your counterparty may not disclose anything to business third parties, subject to a penalty of €100,000 per violation. You breathe a sigh of relief. The matter is settled.

But then: your counterparty calls one of your major clients and sows doubt about your products. You want to levy enforcement proceedings and collect the penalty. Surely the court minutes constitute an enforceable title? Surely you can simply proceed with enforcement?

Not so fast, says the Dutch Supreme Court in its ruling of 28 November 2025.

What happened?

Following a dispute arising from a share transaction, two companies — Lucrum B.V. and Raxtar B.V. — reached a settlement with their former shareholder during summary proceedings. The court minutes recorded a confidentiality obligation: the former shareholder would refrain from making statements to business third parties about anything related to the companies. In the event of a violation, he would owe a penalty of €100,000 per breach.

In the years that followed, Lucrum c.s. alleged that the counterparty had violated the confidentiality clause on two occasions — including by calling an important client and suggesting that Raxtar's products did not comply with regulatory requirements. On the basis of the enforceable copy of the court minutes, they levied enforcement attachment on the counterparty's shares in his holding company. In total, they claimed over €200,000 in forfeited penalties and costs.

The counterparty went to court and sought suspension of the enforcement proceedings.

What did the Supreme Court decide?

The district court, the court of appeal and the Supreme Court all reached the same conclusion: the enforcement was unlawful. The essence of the ruling is clear:

Although court minutes of a settlement have enforceable force (Article 89(1) jo. Article 430 Dutch Code of Civil Procedure), that force extends only to claims that are described therein with sufficient specificity.

And that was precisely what was lacking. The court minutes stated the amount of the penalty (€100,000 per violation), but did not regulate how it would be established in an objectively binding manner that the confidentiality clause had actually been violated. In other words: there was no mechanism to answer the question "has a violation occurred?" in a way that was binding on all parties.

As a result, the amount of the forfeited penalties was not objectively determinable, and the court minutes could not serve as an enforceable title in this respect. Anyone wishing to collect the penalty first had to go to the substantive court.

The difference with a court-imposed penalty

Lucrum c.s. argued that a contractual penalty is comparable to a court-imposed penalty payment (dwangsom): with both, the debtor pays a sum of money if they violate a prohibition, and with both the creditor should be able to enforce immediately after service.

The Supreme Court rejected this reasoning. With a court-imposed penalty, the violation of a judicial prohibition can in principle be established objectively — the court has already decided what the debtor must do or refrain from doing. With a penalty clause in a settlement, it is different: whether the counterparty has violated the confidentiality clause is a factual and legal question that must first be answered. And that requires court proceedings, not a simple enforcement action by a bailiff.

What does this mean for you as a business owner?

This ruling touches on a practical and common problem in commercial settlements. Some key lessons:

1. A settlement is not automatically 'enforcement-ready' The fact that a settlement is recorded in court minutes does not mean you can immediately enforce upon every alleged violation. The claim must be sufficiently specific — and that requires more than merely stating a penalty amount.

2. Include in the settlement how violations will be established If you want to be able to act quickly in the event of a future violation, explicitly include in the settlement agreement how a violation will be established. Consider:

• An arbitration clause or binding advice arrangement
• A provision that a bailiff or notary certifies the violation
• An explicit acknowledgement that certain facts will constitute a violation

Without such a mechanism, every alleged violation will require new substantive proceedings — with all the associated costs and delays.

3. Be cautious about enforcement attachment based on settlement minutes A premature enforcement attempt without a solid enforceable basis can backfire. The counterparty can successfully have enforcement suspended, and you may face a claim for damages for abuse of enforcement powers.

4. Substantive proceedings sometimes remain unavoidable Even if you have reached a settlement: if the counterparty subsequently violates it, it may be necessary to pursue full substantive proceedings to collect the penalty. This illustrates how important it is, when concluding a settlement, to already think ahead about how it will be enforced.

Conclusion

A settlement recorded in court minutes constitutes an enforceable title — but that title has its limits. Claims for payment of a penalty for breach of a confidentiality clause are only directly enforceable if the court minutes themselves establish how the violation is to be determined objectively. If that is absent, you are left empty-handed after an alleged violation and must go back to court.

This ruling underlines that a good settlement is not only about the substance of the arrangements, but also about their enforcement. Invest in a legally solid settlement text — it will save you a new procedure later.

Ruling

This blog post is based on ECLI:NL:HR:2025:1807, ruling of the Dutch Supreme Court of 28 November 2025.