Recently we talked about ordinary revocatory action , its characteristics and its autonomous nature with respect to bankruptcy and criminal revocatory action.
Today we try to integrate the topic in question, introducing the specificities of the bankruptcy revocation action. In particular, we treat the legitimacy and the exercise of the action, the revocable acts and those removed from the revocation fence.
What is bankruptcy revocation action
The bankruptcy revocatory action is a tool that the legislator has envisaged to allow for the re-establishment of the bankrupt’s assets , going to render ineffective the acts that the bankrupt had put in place in the period prior to the declaration of bankruptcy , in violation of the principle of the condition of creditors .
Repeatedly innovated over the years, the institute therefore aims to safeguard the bankrupt’s assets in the interest of creditors’ satisfaction . At the same time, the aim is to avoid an aggravation of the crisis situation of the company due to the withdrawal of the support of creditors obviously intimidated by the effects of a possible revocatory action. It is for this reason that more recent regulatory interventions have halved the “suspect” period, ie the period in which the revocatory action can operate. Instead, a series of “exemptions” have been introduced from this point of view.
Legitimation to propose bankruptcy revocatory action
To propose an insolvency action is legitimate for the bankruptcy trustee before the court which has declared bankruptcy. The deadline falls within three years of the declaration, and no later than five years from the completion of the deed.
Through the bankruptcy revocation action , all the disposals, payments and guarantees put in place by the bankrupt in the year or in the six months prior to the bankruptcy are declared ineffective (except that, obviously, the other party proves not to be in knowledge of the debtor’s insolvency status).
When the third party, as a result of the bankruptcy revocation action, has returned what was received from the debtor, he is also admitted to the bankruptcy liabilities for the credit that he might still claim.
Which acts are revocable
The bankruptcy law makes clear in the deeds that are put in place by the bankrupt. A number of different regimes are distinguished according to whether the revocation concerns acts for free, payments or documents against payment, payments and guarantees.
Proceedings free of charge
Going with order, with regard to the acts for free (for example, a waiver or a remission), made by the bankrupt in the two years preceding the declaration of bankruptcy, the revocation is oping legis.
A similar approach was also provided by the legislator for the payment of receivables due on the day of the declaration of bankruptcy or subsequent to the declaration of bankruptcy. In this case the bankrupt must have carried out the operation in the two years prior to the declaration. Also in this circumstance – as it happens for the acts for free – the acts have no effect. The action eventually promoted by the creditor to be able to declare its ineffectiveness has a declaratory nature, and is not subject to prescription.
Proceedings for consideration
On the other hand, the discussion regarding documents for consideration is different. Article. 67 lf has distinguished four different categories for the acts that are carried out by the bankrupt in the year or in the six months prior to the bankruptcy. For these, the bankruptcy revocatory action can be exercised. The cases in which – as already introduced – the counterparty prove to be unaware of the debtor’s insolvency status are reserved:
- acts in which the services performed or the obligations assumed by the bankrupt exceed by more than a quarter what he has been given or promised;
- extinct deeds of past due and pecuniary debts not made with money or other normal means of payment;
- pledges, antiques and voluntary mortgages constituted for pre-existing debts not expired;
- pledges, antiques and judicial or voluntary mortgages constituted for expired debts.
If, on the other hand, the other party knew the debtor’s insolvency status (and the trustee is able to prove it), liquidated and payable debt payments can also be considered as revoked, as well as documents for consideration and those constituting a right of first refusal for debts, including of third parties, simultaneously created, if completed within six months prior to the declaration of bankruptcy.
The discipline, in this aspect, is completed by the so-called special revocations, on assets dedicated to specific business, overdue bill payments, deeds between spouses and Articles. 67 lf and ss.
Acts excluded from bankruptcy revocatory action
Not all the acts performed by the bankrupt subject can be subjected to bankruptcy revocatory action.
In particular, the current version of the bankruptcy law introduces seven categories of deeds which are removed from the revocatory action demanded by the curator. It is:
- the remittances that are made to a bank current account, provided they have not reduced the debt exposure of the bankrupt to the credit institution in a manner deemed “consistent” and “durable”;
- sales and preliminary sales “at the right price”, which have as their object the residential buildings, intended to constitute the main residence of the purchaser or his relatives and relatives within the third degree, or those that are destined to constitute the head office of the purchaser’s business;
- the deeds, payments and guarantees that appear to have been granted on the debtor’s assets, provided that they are implemented in execution of a plan, the feasibility of which must be certified by a professional not bound to the company, and capable of appear to be suitable to allow the recovery of its debt exposure and to ensure its financial rebalancing;
- the deeds, payments and guarantees that appear to have been granted in execution of the arrangement with creditors, of the controlled administration, of the approved agreement pursuant to art. 182-bis, as well as existing after the filing of the appeal pursuant to art. 161;
- payments for work services that are made by employees and other collaborators, including those who are not subordinates, of the bankrupt;
- the payments of debts deemed liquid and payable executed at maturity in order to obtain the provision of services instrumental to the access to the insolvency procedures of receivership and arrangement with creditors.