Lent money and not repaid in Belgium: proof, formal notice and court action

Lent money and not repaid? It happens to many people who helped out a friend, a relative or an acquaintance in need. Often nothing was put in writing, which makes the situation all the more painful. Yet you are not powerless: this article explains how to prove the loan, how to claim repayment in Belgium step by step and how to avoid problems in the future.

Lent money not repaid: can you prove the loan?

In a dispute, the person who claims to have lent money must prove it. Between private individuals, a legal act involving 3,500 euros or more must in principle be proven by a signed document (Article 8.9 of the Belgian Civil Code). Below that amount, evidence is free, for example through witnesses or presumptions. There are important exceptions:

• Beginning of written proof: a document from the other party that makes the loan plausible, such as an email or a message in which they acknowledge the debt or ask for more time, can be supplemented by witnesses and presumptions;
• Moral or material impossibility: if the circumstances, such as a close family tie, made it impossible to ask for a written document, the court may accept other evidence;
• Businesses: against a business, evidence is in principle free.

A bank transfer proves that you paid money, but not necessarily that it was a loan rather than a gift. Keep every message in which repayment is discussed. If the loan dates from before 1 November 2020, when the new law of evidence entered into force, the former, stricter rules of evidence may still apply.

Step 1: ask for repayment in writing

Start with a clear, friendly but formal request for repayment, preferably in writing. A reply in which the borrower acknowledges the debt, for example by asking for more time, considerably strengthens your evidence. You may also propose a written instalment plan, signed by both parties.

Step 2: send a formal notice of default

If payment still does not come, send a formal notice of default (ingebrekestelling / mise en demeure) by registered post, stating the amount, the date of the loan, the agreed repayment terms and a reasonable deadline for payment. From the date of the formal notice, default interest is in principle due at the statutory interest rate, unless you agreed on other interest. That statutory rate is set anew every year.

A letter from a lawyer often has more impact. A formal notice sent by registered post by a lawyer or a bailiff (gerechtsdeurwaarder / huissier de justice) to a debtor whose domicile, residence or registered office is in Belgium can also interrupt the limitation period once, provided it contains all the particulars required by law: a new period of one year then begins to run, although the claim cannot become time-barred before the end of the original period (Article 2244, § 2, of the old Civil Code). See also our article on drafting a formal notice.

Step 3: court proceedings

If the borrower still does not pay, you can go to court. Claims up to 5,000 euros are generally heard by the justice of the peace (vrederechter / juge de paix), higher amounts by the court of first instance. Proceedings are usually brought by a writ of summons (dagvaarding / citation) served by a bailiff.

If the debt is evidenced by a document issued by the debtor, a simplified payment order procedure on application is also possible, subject to conditions. If you win, the borrower is generally also ordered to pay the legal costs, including a procedural indemnity as a fixed contribution towards your lawyer’s fees. The judgment is an enforceable title.

Step 4: enforcing the judgment

The judgment must first be served by a bailiff. A final judgment at first instance is in principle provisionally enforceable, even if an appeal is lodged, except for a default judgment or where the court decides otherwise. With an enforceable judgment, the bailiff can seize assets, including bank accounts, movable property or the debtor’s wages. Part of the wages and of certain benefits remains exempt from seizure within the statutory limits.

If the debtor threatens to make their assets disappear, a precautionary attachment can, subject to conditions, be levied even before judgment. Read our article on precautionary attachment. For enforcement seizures, see our article on seizure by a bailiff.

Limitation: how long do you have?

A claim for repayment of a loan is generally time-barred ten years after the date on which repayment became due (Article 2262bis, § 1, of the old Civil Code). If no due date was agreed, the position is more nuanced, and the court may itself set a period for repayment. Agreed interest generally becomes time-barred sooner, after five years (Article 2277 of the old Civil Code).

So do not wait too long, also because evidence gets lost over time and witnesses remember less clearly what was agreed. An acknowledgement of the debt or a timely writ of summons interrupts the limitation period.

Loans to a family member or partner

Loans within the family or to a partner are rarely put in writing. In such a case the court may accept that it was morally impossible to ask for a written document, so that you can prove the loan by other means. A family tie alone is not automatically enough, however: the court assesses each case on its own facts.

After a break-up, caution is required: between spouses, the rules of matrimonial property law also come into play, and between cohabitants the question may arise whether a payment was a loan, a gift or a contribution to shared household expenses. Have that situation legally assessed.

What if the borrower is insolvent?

If the borrower has been admitted to a collective debt settlement or has been declared bankrupt, you can no longer enforce the debt individually. You must then file your claim with the debt mediator or the trustee in bankruptcy, together with the supporting documents. Do not delay, because your rights depend on filing in time. Bear in mind that in such proceedings you often recover only part of your money.

Read more about collective debt settlement and about filing a claim in a bankruptcy.

Prevention is better: the loan agreement

If you lend money, record the arrangements in a short, signed agreement: the identity of both parties, the amount, the date of payment, the repayment terms, any interest and the consequences of late payment. Pay the amount by bank transfer, with a payment reference to the loan. This avoids later disputes about the evidence or about whether it was a gift.

Frequently asked questions

The borrower claims it was a gift. What now?

Then everything depends on the evidence. Messages discussing repayment, earlier partial repayments or witnesses can show that it was a loan. We review with you which elements support your position.

Can I claim interest if nothing was agreed?

Yes, but as a rule only from the formal notice onwards and at the statutory interest rate. If you want a higher rate or interest from an earlier date, you must agree on it in writing in advance.

Do I need a lawyer to go to court?

No, before the justice of the peace and the court of first instance you may in principle appear in person. Proving a loan without a signed document is, however, often technical. A lawyer helps you organise your documents, choose the right procedure and avoid mistakes that could jeopardise your claim.

Can I use a debt collection agency?

You can, but the amicable recovery of consumer debts is subject to strict rules. A formal notice from a lawyer and, if necessary, court proceedings are often the most efficient route.

The borrower lives abroad. What then?

You can still recover your money. If the borrower lives in another EU Member State (except Denmark), the European order for payment is often a fast route when the debt is not disputed. Read more about cross-border debt recovery.

How Novex Advocaten can help

We assess your evidence, send the formal notice, conduct the proceedings and follow up on enforcement. Mr Mohamed Asfour, lawyer, assists you in English, French, Dutch and Arabic from our office at Avenue Louise 379, 1050 Brussels. See also our article on the limitation of claims.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.