Is son's signature attributable to his father or not?

This week, we discuss a judgment of the Arnhem-Leeuwarden court of appeal, which answers the question: can the false signature of a (now deceased) son under a lease contract be attributed to his father? And if so, why is that the case?

The facts

The case concerns the son of Mr X and Mrs Y. The son concluded a lease agreement for a car on behalf of his father's catering business. Shortly after the conclusion of that agreement, the son had a car accident, in which he died and the lease car was destroyed. The lease company demanded that the father and mother paid the remaining lease instalments. The sum involved is €80,933.70 plus interest and costs.

However, the father takes the position that he did not enter into a lease agreement: his son allegedly forged the signature of the lease agreement and the related deeds of joint and several liability.

The procedure

In the first instance, the Subdistrict Court ordered the lease company to provide evidence of facts and circumstances from which it could be concluded that the contract and the deeds had been signed by father. Subsequently, the Subdistrict Court allowed the claims of the lease company.

The parents lodged an appeal against the judgment of the Subdistrict Court. However, this did not lead to a different outcome: according to the Court of Appeal, it has been established that the signature under the contract and the deeds was not that of the father. But the father is still held responsible for the fact that the leasing company took the false signature of the son for genuine and could reasonably be expected to do so. How is that exactly?

Reasoning of the court of appeal

According to the court of appeal, it is an established fact that the leasing company took the signatures of father on the documents for genuine. The court of appeal ruled that the lease company could also reasonably have assumed that the signatures were those of the father himself. The documents show that the contracts were concluded through an intermediary. This intermediary collected the necessary information and verified the identity of its contracting parties by means of proof of identity provided by the parents.

In view of this and in view of the nature of the information provided - including other personal documents from both parents - such as the tax return of the parents and a statement of good payment behaviour from mortgage lender ABN AMRO in favour of the parents) - the lease company was entitled to trust that the signatures came from father himself. In this case the lease company was not obliged to carry out a further identity verification. The court of appeal takes into account that it has not become apparent, from expert examination or otherwise, that the signatures on the documents gave or should have given rise to a suspicion of forgery.

Special circumstances?

Then the question: are there special circumstances that make the father to be blamed for the fact that the leasing company took his signatures for genuine and was reasonably allowed to keep them?

The Court of Appeal gives the following explanation. "If someone, by falsely pretending to be someone else, makes a statement for that other person, the basic principle is that this other person can rely on the fact that the statement did not originate from him, even if the addressee has assumed and could reasonably assume that the statement did originate from that other person. However, it follows from the principle underlying articles 3:35, 3:36, 3:61 paragraph 2 and 6:147 of the Dutch Civil Code that this may be different under certain circumstances. These circumstances must be of such a nature that they justify that the person for whom something has been falsely declared, is fully or partly attributed with the fact that the addressee has taken the declaration for real and could reasonably take it for real. The circumstances may therefore also be such that the person for whom the false declaration was made is only partly to blame for the fact that the addressee placed legitimate reliance on the declaration, and that this remains for the addressee's account and risk. The extent to which the parties have taken adequate precautions to prevent a third party from being able to impersonate one of them may be a factor in this assessment. In this connection, the parties may be expected to explain what efforts they have made to find out how the third party could falsely claim to be one of them and what the results of these efforts have been. "

The court of appeal then ruled that in this case there were indeed special circumstances justifying the attribution of the forged signature to the father:

• The son first of all had full access to the financial data of his parents’ business, but he also had access to personal documents of his parents (without any apparent reason).
• It also emerged that father did not read his e-mails and left this entirely to his children. As a result, the son was able to send the necessary documents to obtain the lease agreement in the name of the catering business with a forged signature by e-mail and to pay the first lease instalments without the father having any insight into or supervision of this.
• In the period after the conclusion of the contract up to the date of the accident, father did not intervene either, although at some point he became aware of the transaction his son had entered into.

Conclusion

In short: both the parents' business and the parents themselves are jointly and severally liable for the fulfilment of the obligations in the lease agreement. You can read the entire judgment here (in Dutch).

Do you also have questions about (lease) contracts and/or joint and several liability? SPEE advocaten & mediation is happy to help you!