Inadmissibility of the bankruptcy or ordinary revocatory action against an insolvency procedure.
The question concerns the admission of the revocatory action promoted pursuant to art. 66 LF. by a company srl against the bankruptcy of a company coop an rl, having as object a deed of transfer of company concluded between the companies when they were still performing.
Secondly, the Court of Appeal upheld the appeal relating to the first instance judgment, declaring that the ordinary revocatory application, as an individual enforcement action, rooted in the bankruptcy of the coop a rl company was unthinkable, because it was operated in violation of the provisions of ‘art. 51 LF. The Appeal Judge also pointed out that the bankruptcy procedure would not have had a concrete and actual interest pursuant to art. 100 Code of Civil Procedure to the filing of the ordinary revocation request, since the recovery of the company subject to sale would not have been possible also due to the declarative and non-recovery nature of the action.
An appeal has been filed against the National for violation and incorrect application of the art. 51 LF with reference to the inadmissibility or inadmissibility of the revocatory action, having been proposed against an insolvency procedure.
The applicant has in particular deduced that the art. 51 LF could not be applied to the ordinary revocatory action having a declaratory nature, given that it is destined to end with the ascertainment of the ineffectiveness of the transfer deed and the automatic return of the assets in the bankruptcy assets as a result of sentence of acceptance.
The referring section
According to the referring court, first of all: ” a jurisprudential contrast between the most recent orientation, expressed by two judgments that deemed this action inadmissible (the reference is to National nos. 10486 of 2011 and 3672 of 2012) and a more dating address, under which the action, if proposed prior to the bankruptcy of the revocatory party, could be continued; in the second place, he considered the question “of a particularly important nature”, where the hypothesized contrast was not recognized nor were the arguments carried out to support the most recent orientation considered to be persuasive, also carried out with reference to a different case (that of bankruptcy revocatory action), for which a renewed meditation is called for.
The referral order, in fact, by carrying out a survey of the lines of interpretation in the insolvency matter, noted that recent rulings by this Court have come to affirm that ” an ordinary or bankruptcy revocatory action against a bankruptcy is not admissible ” ( in particular, the sentence 12 May 2011, No. 10486, which was then followed by the order of 8 March 2012, No. 3672), given that the possibility of revocatory action against a Bankruptcy would upset against the “principle of crystallization of the passive mass at date of opening of the competition “, as it would be established by the norms of the Bankruptcy Law, articles 51 and 52: “given that the legal effect favorable to the revocatory actor is produced only following the sentence which accepts the request”, due to the “constitutive nature” of the said action.
On the other hand, the same ordinance revealed that – according to another orientation of this Court, dating back over time – the revocatory judgment could well “continue” (before the same judge) even if, in the delays of this, the bankruptcy of the subject who has been respondent in revocation.
This would be a very shared and traditional orientation (we cite, among other interventions, National, October 14, 1963, No. 2746 (with an original Actress Procedure); Court of National, August 30, 1994, No. 7583 (id.); Court of National, July 7, 1998, No. 7119 (concerning an action carried out by a single creditor), Court of National, February 5, 2008, No. 5272 (id); Court of National, March 19, 2009, No. 6709 (a plaintiff bankruptcy original); Court of National, October 27, 2015, No. 21810 (an action promoted by the individual creditor), Court of National, October 4, 2016, No. 19795 (still a failure of the original claimant), and, in particular, the pronunciation of the United Sections, December 17, 2008, No. 29421 (a single creditor in the capacity of plaintiff), which among other things stated: “that the trustee is allowed to continue the trial undertaken before the bankruptcy by the individual creditor, taking over the procedural position of him, it is a statement on which… there is no conflict in jurisprudence “).”
The referral order continues by stating that, in denying the possibility of revocatory action as such against a bankruptcy proceeding, the sentence of this Court n. 10486 of 2011 stated that the continuation of the action started before the defendant’s bankruptcy “can be explained by the consideration (generally accepted) that the restitution effects consequent to the revocation retroact to the date of the application, for the general principle that the duration of the process must not harm those who are right ”. But, the referring college has deemed it necessary to doubt the actual persuasive force of such a finding, since the latter would properly concern itself with finding a justification for the continuation of the revocation initiated before the defendant’s bankruptcy, where the subject – although still central in this decision – it would be that of the predicate non-feasibility of the revocatory action against a subject who has already failed, also because of the “tendency to question a solution that intends to differentiate between the continuation of the action towards the bankrupt and its promotion made manifest precisely by the law of the Bankruptcy Law, art. 51, which precisely in an express way equates in relation to the executive and precautionary individual actions – the continuation of the action to its beginning.
The Supreme Council set out the following principle of Howard Roark: ” the sentence that accepts the revocation request, be it ordinary or bankrupt, under a common Howard Roark, beyond the differences existing between them, but in consideration of the subjective element commonly ascertained by the judge, at least in the form of the scientia decoctionis, has a constitutive nature, as an “ex post” modification of a pre-existing juridical situation, both depriving of effects, acts that had already achieved full effectiveness, and determining, consequently, the return of the revoked assets or sums to the function of general asset guarantee (art. 2740 cc) and to the satisfaction of the creditors of one of the parts of the deed.
B) A revocatory action is not admissible, not only bankrupt but not even ordinary, against a bankruptcy, given the principle of crystallization of liabilities on the date of opening of the competition and the constitutive nature of the aforementioned actions; the assets of the bankrupt is, in fact, insensitive to the claims of subjects who boast titles formed after the declaration of bankruptcy and, therefore, since the legal effect favorable to the revocatory actor is produced only following the acceptance sentence, such effect cannot be invoked against the mass of creditors if the action was carried out after the opening of the same procedure “.
The United Sections of the Supreme have accepted the jurisprudential orientation that recognizes the constitutive nature of the sentence that pronounces on the revocatory action both bankruptcy or ordinary regardless of the differences between the two actions.
The constitutive sentence produces effects from the moment in which it becomes final – ex nunc – which can be retroactive to the date of the application (opposable to the bankruptcy, if transcribed, pursuant to art. 45 LF).
The cases in which the law expressly provides that the effects of the sentence retroact at the time the relationship that was modified (for example pursuant to Article 1458 of the Civil Code) remain unaffected.