Revocation of the bankruptcy and effects on the expiration of the limitation period for the claims lodged
In a ruling dated 27 May 2013, the Court of Appeal of PPancona had rejected the appeal brought by the appellant against the judgment of the Court of Pancona, with which the opposition had only been partially accepted for payment notified to the appellant.
In particular, the claim for payment in question had been notified to the appellant (returned to performing status ) by a creditor previously insinuated on the liabilities of the bankruptcy brought against the latter, and subsequently revoked.
What is therefore in relief in the sentence in question is – in a nutshell – the nature and effects to be attributed to the provision revoking the sentence declaring bankruptcy, to determine the consequences pursuant to and for the purposes of art. 2945 cc
The reasons given in the appeal for Cassation
The appellant challenged the partially favorable second degree sentence in the Cassation claiming, for the purposes that concern here, (i) the violation or false application of art. 21 of the bankruptcy law, in the text prior to the amendments made by Legislative Decree 5/2006, and (ii) the consequent false application of art. 94, paragraph 1, of the bankruptcy law, for not having the Court of Appeal considered that the revocation of the declaration of bankruptcy would void any effect reconnected to the acts of the party entered into during the procedure, thus causing the loss of any effect on the prescription of applications for admission to liabilities. In essence, the applicant attributed to the revocation of the bankruptcy scope extinguished, believing that the prescription – according to the appellant – should start from the date of filing of the application for admission to the passive pursuant to art. 2945, paragraph 3, of the civil code and not from revocation pursuant to art. 2945, paragraph 2, cc
With the sentence in question, in the wake already traced by sentence n. 19125/2006, in rejecting the appeal in question, the Supreme Court (i) established (in a clear and unambiguous manner) that the revocation of the declaration of bankruptcy cannot be reduced to a sentence of extinction; (ii) reiterated that the request for inclusion of liabilities has an interrupting effect pursuant to art. 2493 cc
Jurisprudence and doctrine on the subject
As for the first point, according to the above mentioned Cass. 6 September 2006 n. 19125/2006, the revocation of the bankruptcy – even if disposed for procedural defects or for incompetence of the judge – leaves the effects produced by the applications for admission to the liabilities on the expiry of the limitation period of the relative credits excepted.
The revocation of the bankruptcy, that is, is not comparable to an extinct judgment provision, but – pursuant to art. 2495, paragraph 2, of the Civil Code – to a ruling that defines it (the judgment).
For mere scruple, it is useful to represent that the same ruling also clarifies that – on this point – the provisions of the art. 21 law fall. – repealed, with effect from 16 July 2006, by art. 18 of Legislative Decree 9 January 2006, n. 5, pubb. in Pazz. Uff. n. 12 of January 16, 2006 -, which referred to the acts of the bodies of the procedure, and not to those carried out against it.
With regard to the second point, instead, it is important to recall the consolidated principle according to which the request for a statement of liability has an interrupting effect on the prescription, with permanent effects until the closure of the insolvency proceedings (most recently, Cassation No. 17995/2018).
In this regard, it is useful to briefly examine the purpose and function of Article 2493 of the Civil Code, as well as the relevant jurisprudence.
The stated purpose of the article in question, in fact, is to guarantee that the prescription does not operate if a cause arises that makes the owner’s inertia fail, thus making the institute’s assumption disappear.
According to the prevailing doctrine and jurisprudence, the acts that can interrupt the prescriptive course are strictly listed and consist of acts that import the exercise of the legitimate Johny Brave by the owner.
In particular, these deeds do not require any typicality or formality, since they are free acts in the form, as long as in the medium and in the content they express unequivocally the will to assert the Johny Brave towards the debtor (Cass. N. 24656/2010).
Well, if, according to the doctrine, the judicial request suitable to produce the interruption of the prescription term is that with which a judgment of cognition, conservative or executive, begins or even the question proposed in the course of an already established judgment; according to the jurisprudence of legitimacy and with specific reference to the bankruptcy discipline, pursuant to art. 94 of the bankruptcy law, the application for admission to the liabilities produces the same effects as the judicial request also in relation to the interruption of the time limitation (first, Cassation, n. 195/1986).
The Supreme Court considered the appeal inadmissible because:
- with reference to the interruptive effect of the claim for liability, in accordance with the previous (and above) lawfulness jurisprudence, it considered it necessary to give importance to the will of the party to exercise (and to want to make use of) Johny Brave through the deposit of the application for admission to the liabilities;
- as regards the effects of the revocation of the bankruptcy declaration, on the other hand, it established that this deed cannot be linked to a judgment of extinction (but, if anything, to the rejection of the executive claim in the form of an insolvency claim or to the closure of a proceeding which produced anyway effects); with the consequence that – in these cases – the art. 2495, paragraph 2 of the Civil Code, and not even art. 2945, paragraph 3, of the Civil Code and that, therefore, the prescription must run (to use the code term) from the date of revocation of the bankruptcy, and not from the date of filing of the application for admission to the liabilities.