introduced multiple changes to the original insolvency law (legge fallimentare of available at ruthenpress.info English translation of the Nuova legge fallimentare, the new Italian bankruptcy law. The re- forms have brought about a modern, efficient and effective system. do not deal specifically with international aspects of insolvency proceedings, apart from the rule set by art. legge fallimentare, which is not frequently used .
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Jun 14, fileupload/pdf (discussing the liquidation of a bankruptcy estate); Legge .. pursuant to Article ); Legge Fallimentare—Testo a Fronte. B. Uffici d'esecuzione e uffici dei fallimenti. 1. Organizzazione. 1 In ogni circondario d'esecuzione è istituito un ufficio d'esecuzione diretto da un ufficiale. PDF | On Jan 1, , Francesco Capalbo and others published La relazione comma 2 della Legge fallimentare come possibile strumento di tutela anche .
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Hardware Computers: Software Computers: Contract s Law: Patents, Trademarks, Copyright Law: Cardiology Medical: Dentistry Medical: Health Care Medical: Instruments Medical: Bankruptcy law Entered by: Peter Cox. KudoZ activity Questions: Grading comment Many thanks!
Discussion entries: Automatic update in Legge Federale. Bankruptcy law. Salvatore Leuzzi, Dott. Legge Fallimentare - Del fallimento Altalex ; 12 set Pubblichiamo il testo coordinato della Legge Fallimentare aggiornato, da ultimo, dal Riforma legge fallimentare: concordato preventivo, offerte Appunti veloci sulla riforma della legge fallimentare Cosa si intende per moneta fallimentare? Altalex ; 26 ott La moneta fallimentare costituisce, nelle intenzioni del Legislatore, un credito da Crisi d'impresa: come cambiano le procedure con la Legge On the other hand, in the German bankruptcy system, the non-debtor party to a rejected contract is regarded as any other general unsecured creditor who has to share pro rata with all other unsecured creditors.
If the bankruptcy trustee omits to take action within a reasonable time, then it is deemed that the bankruptcy trustee has rejected the contract. However, unlike the German model, if the bankruptcy filing is voluntary, there is no need for a detailed investigation because for the bankruptcy court it is sufficent to examine the documents submitted by the debtor in order to find the grounds for bankruptcy relief.
Conversely, if the bankruptcy is involuntary, the bankruptcy court instructs an expert to prepare a report. If the bankruptcy court finds that the debtor is insolvent, it orders the commencement of the bankruptcy case. Assumption The commencement of the bankruptcy case creates the bankruptcy estate but, under the Spanish bankruptcy law, the bankruptcy estate is not an entity with its own legal personality; instead, it is a pool of those assets that have been seized from the debtor for the benefit of its creditors.
The main consequence of automatic assumption is that all the obligations related to performance of a contract are treated as administrative expenses, which have a priority position over all the other unsecured claims. Moreover, according to the Spanish bankruptcy law, administrative expenses have to be paid as they come due. Rejection The Spanish Insolvency Act provides that the bankruptcy trustee can reject a contract with the approval of the bankruptcy court.
The main effect of rejection is that the counterparty is entitled to damages compensation, which is treated as an administrative expense. Likewise, this rule creates incentives for the bankruptcy trustee to choose breach of the contract when the cost of performance to the bankruptcy estate is greater than the benefit of performance to the non-debtor party i. The Spanish bankruptcy law solves the conflict between this rule and the bankruptcy principle of equal treatment among creditors by providing that all executory contracts are automatically assumed.
The non-debtor party to a contract then is not a creditor of the debtor but a creditor of the bankruptcy estate. Time Limit No time limit is imposed on the bankruptcy trustee to decide rejection of an executory contract.
However, it is evident that the bankruptcy trustee can reject executory contracts before the confirmation of the reorganization plan, as it has to be approved by the bankruptcy court previous hearing of the non-debtor party, as it is to be explained below. In this model, time limits for the trustee to dispose of executory contracts are somewhat irrelevant as all executory contracts are automatically assumed.
Specifically, both the bankruptcy estate and the non-debtor party have to continue performing the contract in its original terms as long as the bankruptcy trustee does not reject the contract. Moreover, if the contract is breached by the bankruptcy estate, the claim for damages is granted an administrative priority, which ensures that the non-debtor party is compensated in full.
According to the Spanish Insolvency Act, once the bankruptcy trustee request rejection of an executory contract, the bankruptcy court summons the bankruptcy trustee, the debtor, and the non-debtor party for a hearing.
In such a hearing, the bankruptcy court mediates between the parties. If the bankruptcy trustee and the non-debtor party do not reach agreement on the rejection of the contract, the conflict is solved in a collateral proceeding. The treatment of executory contracts and its effects in efficiency terms has been examined by American scholars in previous studies.
The part argues that the regime adopted by the American and German models is undesirable as it facilities the externalization of costs by the bankruptcy estate to reject executory contracts, creating inefficient incentives for the bankruptcy trustee ex post as well as for the debtor and its creditors ex ante. It also argues that the Spanish model, which adopts a regime that forces the bankruptcy estate to internalize the costs of rejection, creates the most desirable results both ex post and ex ante.
Finally, this part argues that because the rules on the treatment of executory contracts adopted by the Spanish model create the most desirable incentives for the bankruptcy trustee, this model is superior to the American and German models. Ex post Efficiency to Reject Assumption or rejection of executory contracts is part of the ordinary decisions that the bankruptcy trustee has to make in the administration of a bankruptcy estate. In spite of these judicial limitations, the bankruptcy trustee is the one who has the initiative to assume or reject contracts.
The Possibility of Inefficient Rejection This part intends to establish if, from an efficiency perspective, there is a regime for the treatment of the damages claim for rejection likely to create the best incentives for the bankruptcy trustee to make decisions on assumption or rejection of executory contracts that result in an increase in the value available to all the parties affected rather tan exclusively to the bankruptcy estate.
The bankruptcy trustee chooses assumption or rejection of an executory contract depending on whether the contract is valuable or burdensome to the bankruptcy estate, which in turn is determined by the value of the contract and cost of performance to the bankruptcy estate. However, as explained by Jesse Fried, from an efficiency perspective it is desirable that assumption or rejection of executory contracts is decided on whether a contract increases total value the value to both the bankruptcy estate and the non-debtor party.
When two parties enter into a contract, some value is created so that both the promisor and the promisee are better off. Due to this value it is desirable to make a promise enforceable and to provide the promisor with remedies to ensure the enforcement of the promise.
The most common remedy available in contract law to the promisee is damages compensation. Damages compensation consists in forcing the promisor to pay an amount of money to the promisee equal to the loss the promisor suffers as a result of breach of the contract or equal to the gain the promisee would have realized on performance of the contract. This doctrine is known as the theory of the efficient breach.
This conception considers that it is desirable to treat the damages claim for rejection as a general unsecured claim because it eases the rejection of those contracts that are burdensome to the bankruptcy estate. To be clear, it is necessary to enable the trustee to perform contracts that are beneficial for the estate and unburden the bankruptcy estate from unfavorable contracts that pose an obstacle to the maximization of the bankruptcy estate value. Consequently, as any prepetition claim, the damages claim has to share pro rata with all other unsecured claims in the distribution of the assets; otherwise, the non-debtor party to an executory contract would be treated differently from all the other general unsecured creditors.
Executory contracts are burdensome to the bankruptcy estate when the cost of performance is larger than the value of the contract to the bankruptcy estate; likewise, performance is wasteful when the cost of performance to the bankruptcy estate is greater than the value of the contract to the non-debtor party. In other words, if the trustee decides to assume the contract, the loss from performance to the bankruptcy estate is greater than the gain that the non-debtor party obtains.
A contract is value-creating when it increases the total value available to both the bankruptcy estate and the non-debtor party; that is to say, when the cost of performance to the bankruptcy estate is less than the benefits the contract creates for the non-debtor party; to put it differently, the gain from rejection to the bankruptcy estate is less than the loss imposed on the non-debtor party if the contract is rejected; a contract is value-creating because performance increases the total value to both the bankruptcy estate and the non-debtor party.
Rejection of a value-creating contract then is inefficient because the value that performance of the contract would create for the benefit of both the bankruptcy estate and the non-debtor party is lost. When the damages claim for rejection is treated as an unsecured claim, the damages claim is paid on a pro rata basis, whereas the obligation arising from the assumed contract and any damages claims arising from post-assumption breach of such contract have to be paid in full.
The difference in the cost of performance and the costs of breach creates a bias towards rejection, even if the contract is value-creating. This rule ensures that the non-debtor party is compensated in full for the expected gains lost as a result of rejection of the contract. The effects of this rule are similar to those of paying in full the damages for breach in contract law. Because the bankruptcy estate is forced to fully internalize the costs of rejection, the bankruptcy trustee has the efficient incentives to choose assumption of the executory contract when performance is value-creating and chose rejection of the executory contract when performance is value-wasting.
Treating damages claim for rejection as administrative expenses prevents the bankruptcy trustee from rejecting an executory contract when the loss imposed on the non-debtor party is greater than the benefit obtained be the bankruptcy estate because the bankruptcy estate is forced to internalize the costs of rejection to the non-debtor party.
Similarly, this rule creates efficient incentives for the bankruptcy trustee to reject when performance is wasteful, that is when the benefit to the non-debtor party is less than the cost of performance to the bankruptcy estate.
Again, the reason is that the bankruptcy estate has to internalize in full the costs of rejection to the non-debtor party. This rule creates more certainty about the fate of the contract for the non-debtor party, because the bankruptcy estate is obliged to pay the non-debtor party in full in either case: assumption or rejection. Objections As explained above, the Spanish model creates the most efficient incentives for the bankruptcy trustee ex post.
However, this model may create other sort of problems, namely: a it violates the principle of equal treatment among creditors, and b it may hamper the rehabilitation of the debtor.