Bankruptcy and Compensation: Analysis of Ordinance No. 15825 of 2024

The recent Ordinance No. 15825 dated 06/06/2024, issued by the Court of Cassation, addresses delicate issues related to bankruptcy and the formation of the passive state. This ruling, in particular, examines the question of compensation of credits and debts between a bank and a bankrupt account holder, highlighting crucial aspects for creditors in bankruptcy proceedings.

The Context of the Ruling

The controversy originated from a situation in which a bank had been admitted to the bankruptcy passive for the entire credit arising from the current accounts of the bankrupt. The bank opposed the enforcement decree, contesting the lack of recognition of the compensation between its credit and that claimed by the bankrupt. The role of the trustee and any potential appeal were key elements in the judgment.

In general. In terms of the formation of the bankruptcy passive, where the bank has been admitted to the passive for its entire credit towards the bankrupt arising from the debtor balance of the current accounts and related advance accounts, unless otherwise specified, and has opposed the enforcement decree for the lack of recognition of compensation between this credit and that claimed by the bankrupt for the return of the amounts paid to it by the individual debtors of the credits subject to the advance, without the trustee having independently appealed the admission decree, the opposition judge cannot again examine the issue related to the opposability towards the mass of the individual advance transactions based on a reevaluation of the facts that have been or should have been the subject of that provision, as the admission is covered by the aforementioned judgment; in this case, therefore, the opposability of the contractual document and the consequent advances entails the duty of the judge to ascertain the existence of the compensation clause, which derogates from the principle of crystallization of credits, regardless of whether the credit and the corresponding debt are, respectively, prior and subsequent to the admission of the account holder to the bankruptcy procedure.

The Implications of the Compensation Clause

The ruling emphasizes how the existence of a compensation clause can significantly influence the position of creditors. In particular, the Court highlighted that, once a credit has been admitted to the passive, it is not possible to reevaluate the issue of compensation, unless the trustee independently appeals the admission decree.

  • Compensation can derogate from the principle of crystallization of credits.
  • The judge is obliged to verify the existence of the compensation clause.
  • The advance transactions must be considered based on their timing in relation to the declaration of bankruptcy.

Conclusions

Ordinance No. 15825 of 2024 represents an important reference for legal practice in the field of bankruptcy. It clarifies the management of credits and debts in bankruptcy contexts, highlighting the crucial role of the compensation clause. For professionals in the sector, it is essential to understand these dynamics to provide adequate assistance to their clients in financial crisis situations.

Bianucci Law Firm