August 12, 2022

T-Break

Let'S Talk Law

Composition of energetic mass: stock of products and rights – exclusive circumstances

Introduction

Write-up 192 of the Consolidated Text of the Personal bankruptcy Law (TRLC) introduces the idea of the ‘active mass’ of a personal bankruptcy, which constitutes all of the assets and legal rights built-in into the bankrupt’s property on the date of the declaration of personal bankruptcy, as very well as all those that are reintegrated to the bankrupt or acquired in advance of the summary of the personal bankruptcy proceedings.

The energetic mass incorporates the basic principle of universality derived from Article 1.911 of the Civil Code (ie, the debtor is liable for all of its existing and long run assets).

Underneath Posting 198 et seq of the TRLC, the individual bankruptcy administration should prepare an stock of the bancrupt party’s property and legal rights, like their benefit, by the stop of the day promptly previous the day on which it provides its report (for further more facts remember to see “Composition of active mass: stock of products and legal rights“). This article examines specific situations concerning the composition of the stock of merchandise and legal rights.(1)

Pension ideas

In accordance to Write-up 8 of Royal Decree Regulation 1/2002, which accredited the Revised Text of the Pension Strategies and Money Regulation Regulation, pension strategies are excluded from the stock of superior and legal rights thanks to their unattachable mother nature:

the vested legal rights of the participant in a pension approach might not be subject matter to seizure, judicial or administrative attachment, right until the instant in which the correct to the gain is triggered or in which they grow to be out there in the circumstances of really serious illness or extended-time period unemployment or due to the fact they correspond to contributions manufactured at the very least ten several years prior to.

Even further, in a 5 July 2020 choice, a Madrid courtroom held as follows:

in the context of insolvency proceedings and though the insolvency proceedings are ongoing, the vested legal rights of the pension cash and designs owned by the insolvent corporation are regarded as unattachable by regulation, as very long as none of the contingencies of artwork. 8.6 of the Royal Legislative Decree 1/2002 (aforementioned), not currently being feasible their retention, seizure and entry into the insolvency property until finally explained contingency in these types of a way that if they come about for the duration of the insolvency proceeding, this kind of rewards will enter the insolvency belongings, and if they come about after its termination, they will give increase to the reopening of the insolvency proceeding [art. 179 L.Co ], to a new insolvency declaration or to the declaration of the insolvency proceeding [art. 182 L.Co.] of the estate in the party of demise as a contingency that permits the recovery of the rewards.

In accordance to a 21 September 2016 Barcelona court decision (202/2016), pension designs can’t be seized as these, but the affiliated advantages or vested rights can be seized the moment any of the contingencies that allow for their holders or beneficiaries to dispose of them have occurred. In this case, the pension strategy had been included in the stock but not in the liquidation approach because when the latter had been introduced, the pension plan experienced been unavailable. However, considering that the bancrupt party’s retirement was impending, it was logical to hold off the conclusion of the insolvency proceedings and refuse the exoneration of the unhappy liabilities right until the liquidation of these rights, which had been not attachable and realisable.

Money leases

Post 198.3 of the TRLC states that house owned by other individuals which is in the insolvent party’s possession and more than which the bancrupt occasion has the suitable of use is excluded from the inventory. On the other hand, as an exception, the ideal to use an asset owned by some others will be incorporated in the inventory if the bankrupt is a fiscal lessee.

This provides rise to two possibilities:

  • credit for leasing instalments is a agreement below Posting 158 of the TRLC. Such contracts are thought of to give increase to reciprocal obligations pending fulfilment by both functions or
  • credit history for leasing instalments is a personal bankruptcy credit history with particular privilege underneath Content articles 157 and 270.4º of the TRLC.

In accordance to a 29 June 2016 Supreme Court docket selection (STS 439/2016), the adhering to demands have to be achieved in order for reciprocity to exist:

  • every single occasion need to at the same time be the creditor and debtor of the other party
  • each individual obligation must be the counterpart or countervalue of or thought for dependence on the other
  • despite the fact that an equivalence of values (goal or subjective) concerning the two performances is not necessary, the two ought to have the position of principal in the operation of the contractual romantic relationship. Conditionality between a principal obligation and an accent or secondary obligation does not qualify and
  • reciprocity should exist in the useful phase of the bond and following the insolvency continuing has been declared.

In get to identify no matter if the lawful marriage arising from the lease continues to operate as a synallagmatic romance following the declaration of insolvency, due to the fact the reciprocal obligations of the two functions will be pending fulfilment, it will be necessary to take into consideration the clauses validly agreed by the contracting get-togethers.

Further, the Supreme Court held that the next obligations are not reciprocal pending fulfilment right after the declaration of insolvency:

  • an obligation that the lessor depart the home owned by the lessee
  • an obligation to permit the peaceful pleasure of the leased property
  • an obligation not to impede the lessee’s use of the assets
  • an obligation to obtain the agreed lease and
  • an obligation to transfer possession of the leased assets the moment the invest in possibility has been exercised and the instalment corresponding to the residual benefit has been paid.

Thus, if it is concluded that the credit for leasing instalments is a individual bankruptcy credit score with specific privilege less than Article content 157 and 270.4º of the TRLC, the leased asset ought to be provided in the stock. The privilege falls on stated appropriate of use.

Instalment revenue with reservation of title

According to a Burgos courtroom final decision of 8 February 2011, Posting 270.4º of the TRLC bestows a distinctive privilege on credits for leasing instalments or obtain and sale instalments with a deferred rate of movable or immovable house, in favour of lessors or sellers and – where correct – financiers, wherever these kinds of home is leased or sold with a reservation of title, with a prohibition on disposal or a resolutory affliction in case of non-payment.

In purchase for this sort of privilege to be recognised, Write-up 271 of the TRLC needs that the warranty be constituted prior to the declaration of bankruptcy. Additional, the demands and formalities provided for in the regulation have to be met in buy for the ensure to be enforceable against 3rd functions.

Report 15.1 of Legislation 28/1998 of 13 July 1998 on the sale of movable property in instalments needs domain reserves or the prohibitions on being provided in the agreement to be involved in the Registry of Movable Items in buy to be opposed by third get-togethers.

If not, the creditor lacks the distinctive privilege and the property will be integrated in the inventory with no any cost getting to be recorded thereon.

Right to acquire a tax refund

The correct to attain a tax refund does not crop up right until an express administrative act of recognition of this kind of correct has been issued by the Spanish Tax Company (AEAT).

It is feasible to incorporate these credit score rights against the AEAT, basically for data purposes and stating their provisional character right up until a closing administrative act of recognition has been issued.

The correct to offset upcoming good effects usually takes influence only when the constructive final result to be offset occurs.

Withholdings in promise

At last, thing to consider have to be presented to withholdings in assure of a deal for the execution of operates where the insolvent corporation is the contractor.

Underneath Post 154 of the TRLC, when insolvency proceeding have been declared, the work out of the lien on products and rights built-in in the energetic mass is suspended. This raises the question of whether or not items and legal rights are built-in in the energetic mass even with being held by a third occasion.

According to Supreme Court docket decisions of 30 May perhaps 2014 and 24 July 2014, the liquidation of contracts for the execution of operates in which there were reciprocal credits concerning cost, traditional penalties for delays and retentions in warranty must be admitted. Liquidation is to be carried out by the judge of the insolvency proceedings or by the Courtroom of Initially Instance if the bancrupt party files a claim for retention and the contractor opposes defects in the execution or assumption of labour debts. The final result of the liquidation is integrated in the stock or in the checklist of creditors, relying on the final result.

The offset prohibition underneath Write-up 153 of the TRLC does not implement. The total of compensation thanks as a outcome of liquidation of the exact contractual connection, from which obligations may perhaps have arisen for one or both parties, will be decided in a judicial continuing subsequent to the declaration of insolvency of a single of the functions. Even further, the Supreme Court final decision of 15 April 2014 (STS 188/2014) states that this is extra than payment – fairly, it is a mechanism of liquidation of a contract that has currently been resolved.

Endnotes

(1) This short article is portion of a sequence on the active mass below the TRLC. For other article content in the collection, you should see: