Analysis of case law of Supreme Court of Cassation on the nullity of the transaction on Bank Bankruptcy Law

Authors:

Pages: 243-252

Abstract:

This article examines and analyzes two decisions of the Supreme Court of Cassation, Decision No. 239 /15.05.2018. 986/2017 of I TO and Decision No 160/04.07.2018. etc. 1164/2017 of IIT. The two decisions were issued under Article 280 of the CCP and constitute a practice of the Supreme Court of Cassation, from which the court will be guided in its ruling on such matters. For current lawyers, they are of interest because they respond to extremely important and topical issues concerning the invalidity of transactions under the Law on Bank Bankruptcy (LBA), as well as: what is the moment according to Article 59 (3) of the Law on Banking, which follows to be considered as the moment of acquiring the debts to the debtor bank by the creditor transferee. The question is interesting because the possibility provided for by law to set off a set-off may be declared void in respect of insolvency creditors if the creditor has acquired his claim and obligation before the date of the decision to initiate insolvency proceedings but at the time of the acquisition of the claim the obligation was known to have become insolvent or that insolvency proceedings were requested. (italics mine). The article treats the cession as a bilateral contract for the transfer of a claim and a change of creditor in the bond relationship and offsetting as a means of repaying an existing obligation. As well as the Law on Bank Bankruptcy hypotheses where they would be invalid with regard to insolvency creditors.

Keywords:

bank bankruptcy, nullity, starting date of insolvency, assignment, set-off, date of opening insolvency proceedings, creditors, insolvency mass, invalid transactions.

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