LA CALIFICACIÓN CONCURSAL DE LOS CRÉDITOS NACIDOS DE LOS CONTRATOS CON OBLIGACIONES RECÍPROCAS.

Abstract

Once bankruptcy has been declared, it is the general rule that a contract with reciprocal obligations pending discharge by both parties will, at that time, continue in force automatically, unless the bankrupt or the administrators in bankruptcy have the contract cancelled and the judge overseeing the bankruptcy declares or rules the contract cancelled (Spanish Bankruptcy Act, section 61.2). Whether the pending bilateral contract is upheld or cancelled, the Bankruptcy Act (sections 61.2, paragraphs 1 and 2, and section 84.2, paragraph 6) states that debts born of the contract are classified as debts against the estate of the bankrupt; i.e., they must be settled before all other debts against the bankrupt save those debts that enjoy some special privilege. As a new feature, Royal Decree- Law 3/2009 on urgent measures in tax, financial and bankruptcy matters in view of the economic situation effected a major reform of Act 22/2003. This reform has affected the classification of some of the debts born of contracts with reciprocal obligations: It adds a new paragraph, number 7, to section 92 of the Bankruptcy Act, classifying debts that are subordinate to the debts stemming from contracts with reciprocal obligations to which sections 61, 62, 68 and 69 refer, «when the judge finds, subject to a report by the administrators in bankruptcy, that the creditor is repeatedly hampering performance of the contract in a way that injures the interest of the bankruptcy». Thus, a corrective factor is set into the classification of debts stemming from such contracts, for cases where the creditor refuses to comply; and the continuity of such debts is favoured, under the rule of preservation of the bankrupt's business or professional activity, notwithstanding the bankruptcy declaration, especially at this period of economic crisis. This article concerns the analysis of the classification of debts such as these.