The exoneration of unsatisfied liabilities after the bankruptcy reform by Law 16/2022, of September 5

Abstract

Law 16/2022, of September 5, reforming the Revised Text of the Bankruptcy Law has transposed Directive (EU) 2019/1023 of the European Parliament and of the Council, of June 20, 2019 (Directive on restructuring and insolvency). The Preamble to the law indicates that the consolidated text was the ideal basis for undertaking the transposition of the Directive. Among the changes introduced in Book I of the Consolidated Text of the Bankruptcy Law, those that have to do with the exoneration of unsatisfied liabilities stand out, maintaining the possibility of exoneration for natural persons whose debts do not come from business activities (consumers), which the directive advised. The regulation for which the Spanish legislator has opted is that of an immediate exoneration with prior bankruptcy liquidation of the debtor's assets or, an exoneration through a payment plan, in which he allocates his rents and future income during a period to the satisfaction of its debts, being exonerated the party that finally does not attend and without previous liquidation of all its assets and rights. To obtain this benefit, the natural person debtor, in a state of insolvency and not merely over-indebtedness, must satisfy the requirement of good faith, being able to exonerate all his debts except those that, exceptionally, due to their special nature, are considered non-exemptible. In order to achieve the application of this exception to the principle of universal patrimonial responsibility (art. 1911 CC), the debtor must go to bankruptcy proceedings and show good faith, which is objectified by reference to certain behaviors that are exhaustively related. The exemption of unsatisfied liabilities is regulated in Chapter II of Title XI of Book I of the Consolidated Text of the Bankruptcy Law, which is divided into three sections: the first section, relating to the scope of application; the 2nd section, of the common elements of the exoneration and the 3rd section dedicated to the modalities of the exoneration.