The Limitation Trap: Supreme Court Overrules the Court of Appeal

On 23 January 2026, the Dutch Supreme Court (Hoge Raad) delivered a technical but highly significant ruling in the case of Ennatuurlijk vs. Stichting Reeshofverzet. The judgment strikes at the heart of the law of obligations: the ability to set off old, time-barred claims against new debts.

Many businesses and consumers assume that an old claim can always be deployed as 'currency' against the same counterparty. The Supreme Court has now drawn a firm line. If you wait too long to interrupt the limitation period, you may permanently lose your right of set-off.

The Case: Old Claim vs. New Invoice

In this case (ECLI:NL:HR:2026:93), district heating consumers in Tilburg believed they were owed money by their supplier (Ennatuurlijk) from the past. However, in many instances these claims had already become time-barred: the five-year limitation period had expired without an interruption notice having been sent.

The Court of Appeal in Den Bosch ruled in 2024 that this was not a problem. Because this concerned a continuing contract (you consume heat every month), the consumers could simply offset their old, time-barred claim against the new monthly energy bills. The Court relied on Article 6:131 of the Dutch Civil Code (DCC).

The Supreme Court's Correction

The Supreme Court quashed that judgment. The highest court held that the Court of Appeal had interpreted Article 6:131 DCC too broadly. The legal nuance is as follows:

1. No revival of rights

While Article 6:131 DCC provides that the right of set-off does not expire through limitation, this applies only if the right of set-off already existed before the limitation period ran.

2. The "Snapshot" Moment

Imagine a photograph being taken at the moment your claim becomes time-barred.

• Did a counter-debt already exist at that moment against which you could set off? Then that right of set-off is preserved, even after limitation (Art. 6:131 DCC).
• Does the counter-debt (such as a new invoice) arise only after your claim has become time-barred? Then you are out of luck. Article 6:131 DCC does not create a new right of set-off against debts arising in the future.

Why is this relevant to you?

This ruling is a warning for every contracting party. The notion that "I will not pay that invoice because they still owe me money from 2018" does not hold if your 2018 claim has since become time-barred and today's invoice is new.

For set-off, the requirement of Article 6:127(2) DCC applies without qualification: you must be entitled to enforce payment. Once limitation occurs, you lose that enforceability. You can only 'rescue' it if the conditions for set-off already existed before the limitation period expired.

Conclusion: Interruption is crucial

The lesson from this ruling is clear: do not rely on set-off in the future. If you hold a claim against a business partner, insurer or supplier, you must actively interrupt the limitation period (by written notice stating that you continue to assert your claim). If you fail to do so, the Supreme Court may now hold against you that your right of set-off against future invoices has evaporated.