REMARKS AT THE DECREE EX ART. 99 L. F. OF THE COURT OF GENOA BETWEEN BANKRUPTCY AND FAMILY THERE ARE CONDITIONAL CREDITS
The Decree of the Court of Genoa that we are going to comment on, derives from origins of an opposition of insolvency of a bankruptcy.
Specifically, the Court of Genoa has declared the bankruptcy of A. B. , and opened the proceedings, the judge, in the findings of the insolvency, by deciding on the instance of admission filed by S. I. , and in their own and as a guardian over minor S. B. and S. B. has admitted the credit of S. I. until the acquired of € 2,400.00 to insolvency of the bankruptcy in a privileged position within the meaning of art. 2751 n 4 dc, with the exception of pre-deduction, since it does not concern the claims arising in the occasion or as a result of the functioning of the procedure.
With appeal pursuant to article 98 and 99 L. F. of July 20, 2012 stated that with minutes of November 18, 2011 approved in date November 29, 2011 spouses S. I. and A. B. separated with consent by providing the conditions of separation, among each other, the obligation of the husband was to pay his wife by way of contribution towards the maintenance of the daughters the sum of $600.00 monthly, as well as for the maintenance of his wife the sum of € 200,00 and therefore generally € 800.00 more than adaptation Istat, considering that the Court was wrong in not admitting an insolvency of the bankruptcy also future claims represented by maintenance, none other than a quota for 50% of the outstanding expenses in favor of the daughters that during time would have acquired, since existing claims on the date of declaration of bankruptcy but “conditional”.
Bankruptcy, which constituted promptly, in the statement of defense argued, therefore, that the right to maintenance receivable by S. I. in his favor and in favor of the daughters could not be ascribed to the category of the credits “conditional”, participating in the competition, for the purposes of Articles 96, 113 and 113bis L. F. , from the moment that it was not a question of credits subject to condition, but rather to future receivables, presenting still not existing partially uncertain in relation to their occurrence, especially in reference to the share of extraordinary expenses, which by definition are not predictable in their amount the relative uncertainty is that of the quantum of claims in dispute will be therefore prevented, admission to the insolvency.
In the measure in question is can detect three legal issues.
The first, and most important, the contingent claims.
On the point, it should be mentioned that the right to maintenance may in fact be ascribed to the category of the “conditional” credits, for the purposes of Articles 96, 113 and 113bis L. F. , since credits are subject to condition, but in this case specific, quantified, and certain in their occurrence monthly to the status of the law.
Any changes that will allow their partial admission to a certain redefined extent. It must be said that creditors have the right to insinuate a possible bankruptcy as others, but, unlike the other creditors, their credit is subjected to suspensory conditions.
For this reason, the Bankruptcy Law provides that these credits are allowed “subject to”, i.e. that the sums that are intended are not distributed, even partially, until the “condition” is verified.
In the case where the precedent condition is the case, those subjects, receive the sums the confidential;
With appeal pursuant to article 98 and 99 L. F. of July 20, 2012 stated that with minutes of November 18, 2011 approved in date November 29, 2011 spouses S. I. and A. B. separated with consent by providing the conditions of separation, among each other, the obligation of the husband was to pay his wife by way of contribution towards the maintenance of the daughters the sum of $600.00 monthly, as well as for the maintenance of his wife the sum of € 200,00 and therefore generally € 800.00 more than adaptation Istat, considering that the Court was wrong in not admitting an insolvency of the bankruptcy also future claims represented by maintenance, none other than a quota for 50% of the outstanding expenses in favor of the daughters that during time would have acquired, since existing claims on the date of declaration of bankruptcy but “conditional”.
Bankruptcy, which constituted promptly, in the statement of defense argued, therefore, that the right to maintenance receivable by S. I. in his favor and in favor of the daughters could not be ascribed to the category of the credits “conditional”, participating in the competition, for the purposes of Articles 96, 113 and 113bis L. F. , from the moment that it was not a question of credits subject to condition, but rather to future receivables, presenting still not existing partially uncertain in relation to their occurrence, especially in reference to the share of extraordinary expenses, which by definition are not predictable in their amount the relative uncertainty is that of the quantum of claims in dispute will be therefore prevented, admission to the insolvency.
In the measure in question is can detect three legal issues.
The first, and most important, the contingent claims.
On the point, it should be mentioned that the right to maintenance may in fact be ascribed to the category of the “conditional” credits, for the purposes of Articles 96, 113 and 113bis L. F. , since credits are subject to condition, but in this case specific, quantified, and certain in their occurrence monthly to the status of the law.
Any changes that will allow their partial admission to a certain redefined extent. It must be said that creditors have the right to insinuate a possible bankruptcy as others, but, unlike the other creditors, their credit is subjected to suspensory conditions.
For this reason, the Bankruptcy Law provides that these credits are allowed “subject to”, i.e. that the sums that are intended are not distributed, even partially, until the “condition” is verified.
In the case where the precedent condition is the case, those subjects, receive the sums the confidential;
The rule of admission with reserve is not the case for the credits subject to condition, and this is because such loans until resolute condition becomes verified, are valid and effective, equal to that of others, but if you happen the resolute condition, after which there was the final distribution, these creditors will be exposed to recoverable actions that may be exercised by other creditors or from the unsuccessful.
Now, continuing to investigate this category of loans it must be said that it should be made a further distinction between creditors with respect to those conditions. The contingent claims are, in fact, the existing claims and subordinate to an uncertain future which the effectiveness depends.
The formula seems to be clear, but the difficulties arise because of its practical application in the bankruptcy, before the reform, although no significant element could be drawn from the art 95 l.f. the provisions of art. 113, paragraph 1, no 3, l.f. (original text), to refer “creditors whose claims are subject to suspensor condition not yet verified”, made it clear that the concept of conditional credit was designed with reference to credit already existing with regard to title, but subject to a condition not yet realized.
Even after the reform should not doubt that for contingent claims it should be understood those credits that are subject to a condition for the purposes of their enforceability and not their existence: l’art. 113-bis l.f. , in fact, refer to the credits allowed with provision, expressly provides for the possibility that occur “the event which has determined the acceptance of an application with provision”.
On the other hand, in doctrine, it is said that the art 55 l.f. , on the occasion of the reform of the bankruptcy law, has undergone a very modest change, limited to its last sentence, which was the subject of connection with the other provisions of postponement.
So, therefore, a credit may be allowed in liabilities as conditional credit, it is necessary that the present case constitutes to the same that has already been fully achieved, even if the credit, already risen, has not yet become chargeable because its collectability is subject to the occurrence of the condition.
The case-law, in line with this orientation, has distinguished these credits to those of the so-called future and possible, those of which, for example, the payment to commendable constitutive element and not of mere payment of the credit, as in the case of the credit of the buyer with respect to which the bankrupt will assume the burden of payment of contributions of urbanization, which then is challenged the existence of. However looking at the previous case law, one can see a different orientation.
For example, the Court of Milan with decree February 5, 2008 has taken a decision that provides for the maintenance that is not enforceable in the bankruptcy proceedings.
The judge of Milan was referred to by his wife, separating, which was seen rejected from judge appointed two applications for an allegation of the failure of the husband. Having said that, in fact, that judgment for the cessation of civil effects of marriage and that, in this context, the was provisionally recognized the right to a monthly check of maintenance of €. 1,000.00 , the same was asked to be admitted to the liabilities of the bankruptcy in a privileged position “for € 3,000.00 for accrued maintenance not paid for the months of November and December 2006 and January 2007, with the trustee responsible for the payment of the monthly allowances of maintenance”, as well as being a “conditionally privileged ( …) to € 200,000.00 or in different measure that will be established during divorce, such as 40% of the severance pay perceived by R. and to ascertain with autonomous judgment of determination with respect to R. “The judge deliberated dismissed those questions highlighting, with reference to the severance pay, that the right would be left only to the divorced spouse that this was not yet the moment and, with reference to the monthly check alleged in relation to periods after the declaration of bankruptcy, the debt was not enforceable on the grounds. The wife proposed opposition to the liabilities, insisting on claims made.
The court of Genova with the Decree in examination deviated from this orientation, allowing the applicant to penetrate the insolvency of the spouse who is forced to pay a sum of periodic money for the amounts following the date of bankruptcy relatively to the right to maintenance credit which is “conditional” that participates in the contest, for the purposes of Articles 96, 113 and 113bis L. F. although spouses are not yet divorced.
The second concerns the future receivables. This is the 50% share of the extraordinary expenses in favor of the daughters that in time could ripen and are future receivables, not yet existing and uncertain in relation to their occurrence, extraordinary expenses, by definition are not predictable in their amount.
The third relates precisely to the extraordinary expenses, which is, of course, a matter of the distinction between extraordinary expenditure and not extraordinary is not accompanied by clear indications of the law. At this point, it unleashes often disputes between parents: this is because it often happens that the parent living with the child advances the money to cover an expenditure for the child and then ask the other parent for reimbursement at the rate of 50 per cent. To ask for some “stakes” and understand what are the costs for the children covered by the monthly allowances of maintenance and what the costs are, on the other hand, requires a further integration and legitimization of the claims we need to build on the decisions of the judges. The Supreme Court, with three pronunciations, explained what needs to be understood for extraordinary expenses, such as the expenditure which are exceptional events of the life of the children, with particular reference to their health (Supreme Court 19 july 1999 no. 7672); or expenditure which are needed for or of the costs that serve to meet the occasional needs (that is to say non-continuous) unforeseeable conditions for children (Cassation march 13, 2009 no. 6201); and finally, there are extraordinary expenses that, for their relevance, their unpredictability and their vagueness, are beyond the ordinary scheme of life of the children, considered, even, the socio-economic context in which they are inserted (Supreme Court June 8, 2012 n. 9372).
In conclusion, despite the ruling addressed many problematic aspects that hides the relationship between the family and failure and the difficulties that exist to give a response to concerns that the present case emerge from time to time.
The difficulty concerns especially in balancing family interests on one side and on the other hand the logic claims.
The ruling of the court of Genova opts for the defense and protection of the rights of the family.
It is a choice, it must be remembered, that occurs in the absence of a clear set of unified rules.
The legislator, in fact, did not record any direct intervention aimed at favoring the rights of the family on those of creditors.
The subject matter of the decision, is solely governed by the Bankruptcy Law, in which, you are experiencing both provisions designed to protect your family from bankruptcy (art 46), on the contrary, provisions to protect the bankruptcy from rights of the family (articles 69 and 70).
In this context, then, as often happens, and once again the law to make a decision after a suitable balance of opposing interests, determined by the absence of a decisive intervention by the legislator.
Now, continuing to investigate this category of loans it must be said that it should be made a further distinction between creditors with respect to those conditions. The contingent claims are, in fact, the existing claims and subordinate to an uncertain future which the effectiveness depends.
The formula seems to be clear, but the difficulties arise because of its practical application in the bankruptcy, before the reform, although no significant element could be drawn from the art 95 l.f. the provisions of art. 113, paragraph 1, no 3, l.f. (original text), to refer “creditors whose claims are subject to suspensor condition not yet verified”, made it clear that the concept of conditional credit was designed with reference to credit already existing with regard to title, but subject to a condition not yet realized.
Even after the reform should not doubt that for contingent claims it should be understood those credits that are subject to a condition for the purposes of their enforceability and not their existence: l’art. 113-bis l.f. , in fact, refer to the credits allowed with provision, expressly provides for the possibility that occur “the event which has determined the acceptance of an application with provision”.
On the other hand, in doctrine, it is said that the art 55 l.f. , on the occasion of the reform of the bankruptcy law, has undergone a very modest change, limited to its last sentence, which was the subject of connection with the other provisions of postponement.
So, therefore, a credit may be allowed in liabilities as conditional credit, it is necessary that the present case constitutes to the same that has already been fully achieved, even if the credit, already risen, has not yet become chargeable because its collectability is subject to the occurrence of the condition.
The case-law, in line with this orientation, has distinguished these credits to those of the so-called future and possible, those of which, for example, the payment to commendable constitutive element and not of mere payment of the credit, as in the case of the credit of the buyer with respect to which the bankrupt will assume the burden of payment of contributions of urbanization, which then is challenged the existence of. However looking at the previous case law, one can see a different orientation.
For example, the Court of Milan with decree February 5, 2008 has taken a decision that provides for the maintenance that is not enforceable in the bankruptcy proceedings.
The judge of Milan was referred to by his wife, separating, which was seen rejected from judge appointed two applications for an allegation of the failure of the husband. Having said that, in fact, that judgment for the cessation of civil effects of marriage and that, in this context, the was provisionally recognized the right to a monthly check of maintenance of €. 1,000.00 , the same was asked to be admitted to the liabilities of the bankruptcy in a privileged position “for € 3,000.00 for accrued maintenance not paid for the months of November and December 2006 and January 2007, with the trustee responsible for the payment of the monthly allowances of maintenance”, as well as being a “conditionally privileged ( …) to € 200,000.00 or in different measure that will be established during divorce, such as 40% of the severance pay perceived by R. and to ascertain with autonomous judgment of determination with respect to R. “The judge deliberated dismissed those questions highlighting, with reference to the severance pay, that the right would be left only to the divorced spouse that this was not yet the moment and, with reference to the monthly check alleged in relation to periods after the declaration of bankruptcy, the debt was not enforceable on the grounds. The wife proposed opposition to the liabilities, insisting on claims made.
The court of Genova with the Decree in examination deviated from this orientation, allowing the applicant to penetrate the insolvency of the spouse who is forced to pay a sum of periodic money for the amounts following the date of bankruptcy relatively to the right to maintenance credit which is “conditional” that participates in the contest, for the purposes of Articles 96, 113 and 113bis L. F. although spouses are not yet divorced.
The second concerns the future receivables. This is the 50% share of the extraordinary expenses in favor of the daughters that in time could ripen and are future receivables, not yet existing and uncertain in relation to their occurrence, extraordinary expenses, by definition are not predictable in their amount.
The third relates precisely to the extraordinary expenses, which is, of course, a matter of the distinction between extraordinary expenditure and not extraordinary is not accompanied by clear indications of the law. At this point, it unleashes often disputes between parents: this is because it often happens that the parent living with the child advances the money to cover an expenditure for the child and then ask the other parent for reimbursement at the rate of 50 per cent. To ask for some “stakes” and understand what are the costs for the children covered by the monthly allowances of maintenance and what the costs are, on the other hand, requires a further integration and legitimization of the claims we need to build on the decisions of the judges. The Supreme Court, with three pronunciations, explained what needs to be understood for extraordinary expenses, such as the expenditure which are exceptional events of the life of the children, with particular reference to their health (Supreme Court 19 july 1999 no. 7672); or expenditure which are needed for or of the costs that serve to meet the occasional needs (that is to say non-continuous) unforeseeable conditions for children (Cassation march 13, 2009 no. 6201); and finally, there are extraordinary expenses that, for their relevance, their unpredictability and their vagueness, are beyond the ordinary scheme of life of the children, considered, even, the socio-economic context in which they are inserted (Supreme Court June 8, 2012 n. 9372).
In conclusion, despite the ruling addressed many problematic aspects that hides the relationship between the family and failure and the difficulties that exist to give a response to concerns that the present case emerge from time to time.
The difficulty concerns especially in balancing family interests on one side and on the other hand the logic claims.
The ruling of the court of Genova opts for the defense and protection of the rights of the family.
It is a choice, it must be remembered, that occurs in the absence of a clear set of unified rules.
The legislator, in fact, did not record any direct intervention aimed at favoring the rights of the family on those of creditors.
The subject matter of the decision, is solely governed by the Bankruptcy Law, in which, you are experiencing both provisions designed to protect your family from bankruptcy (art 46), on the contrary, provisions to protect the bankruptcy from rights of the family (articles 69 and 70).
In this context, then, as often happens, and once again the law to make a decision after a suitable balance of opposing interests, determined by the absence of a decisive intervention by the legislator.
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