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A safekeeping agreement is an agreement whereby one party keeps an item belonging to the other and returns it later. The statutory rules (Article 7:600 et seq. of the Dutch Civil Code) are vague—particularly regarding what security is “reasonable” and what remuneration applies. With a written safekeeping agreement, you concretely record these arrangements and prevent uncertainty and disputes.
In the case of safekeeping, one party keeps one or more items belonging to the other. This can arise orally (the umbrella in the cloakroom), through a legal presumption (a hotel guest taking items to their room — making the hotel owner quickly liable for loss), or be recorded in writing.
The legal role of custodian and depositor
Custody is a special type of agreement, with rules set out in Article 7:600 et seq. of the Dutch Civil Code. The custodian must keep the item safe and return it later, and—unlike in a lease agreement —may not use the item himself; he must surrender any proceeds (unless use is necessary to keep the item in good condition).
Custody and return are the principal obligations, and the custodian must take care of these as a good custodian. If he fails in this, he may be liable for damage or loss and must take reasonable security measures. What is reasonable varies from case to case: more may be expected for the safekeeping of gold bars for a high fee than for the free safekeeping of a coat.
If the custodian enters into the agreement in the course of his profession or business, he is entitled to a fee for safekeeping; if this has not been agreed, a reasonable fee applies. Furthermore, the depositor must reimburse expenses, even without an agreement.
What is stated in a safekeeping agreement?
The statutory rules are vague — for example, it is unclear in advance which safety measures are necessary. Because they are regulatory law, you may deviate from them in a written agreement. In this agreement, you stipulate, among other things:
- which security measures the custodian takes;
- the storage fee, and whether the expenses are included therein;
- the liability of the custodian;
- agreements regarding outsourcing to third parties, the use of the item, and any right of retention.
What if I don't have an agreement?
Even without a written agreement, a safekeeping arrangement exists; in that case, the statutory rules regarding liability and remuneration, among other things, apply. These are vague and open to multiple interpretations, meaning that a judge must make the final decision in the event of a dispute. A written safekeeping agreement therefore provides greater certainty.
Frequently Asked Questions
May a custodian use the item in custody?
No, in principle not — he must keep the item and return it, not use it. An exception applies if use is necessary to keep the item in good condition.
Is a custodian entitled to wages?
If he enters into the agreement in a professional or commercial capacity, or otherwise. If no remuneration has been agreed, reasonable remuneration is due, and expenses must be reimbursed.
Do I need a written safekeeping agreement?
Not mandatory, but wise. The legal rules are vague; with a written agreement, you concretely define security, wages, and liability.
Have a safekeeping agreement drawn up
The legal experts at MKB Juristen draft a custom-made safekeeping agreement with clear terms regarding security, remuneration, and liability. View our expertise in contract law or schedule an intake meeting .
