About setoff in bankruptcy


You may setoff when at the time of the declaration of insolvency there are mutual debts, net, due and payable

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If the debts meet the requirements of Article 1196 CC, not applicable Art. 58 of the Bankruptcy Act.

The Supreme Court, in its judgment 129/2019 of 5 March 2019 It has been spoken about.

The company Confort Galicia, S.L (hereinafter "Range") distributing equipment and air conditioning systems. Gama signed purchase agreements with Fridama Facilities, S.L (hereinafter "Fridama"). Gama entered bankruptcy. Fridama tried to apply for compensation of credit and debt between the parties.


To understand the ruling of the Supreme Court is necessary to know the above facts relevantes.En concrete:

– Gama sold 26 April 2 May 2012 machine Fridama. The 29 May 2013 Fridama sued Gama and Termoven (distributor and manufacturer) defects in products. He demanded the restitution of the price paid (32.010,60 euros) and 109.839,95 euros in compensation. The defendants objected and counterclaimed in which they requested payment of the outstanding price (56.626,42 euros). Judgment was delivered on 16 of octubre.Se dismissed the lawsuit against Termoven for lack of passive legitimation. demand was partially upheld against Gama and ordered to pay 85.397,60 euros. This statement became final.

– Gama sold in May and June 2012 machine Fridama. Fridama unpaid bills. Gama filed an action for claim amount 63.169,63 euros. Fridama acquiesced to pay 6.691,31 euros and opposed to other defects in the purchased machinery. The Court of First Instance upheld in part the demand and ordered to pay Fridama 47.319, 28 euros. Fridama appealed to the Provincial Court of A Coruña. By sentence 27 July 2015 The court ordered to pay Fridama 56.328,32 euros.

The 12 November 2014, Gama was declared voluntary bankruptcy.

The 16 December 2014, the opening of the liquidation phase was agreed.

The 17 February 2015, a liquidation plan approved.

In the contest Gama, Fridama reported an ordinary credit 85.397,60 euros (final judgment of 16 October) and a subordinate credit 5.114,50 euros (the interests).

Following the judgment of the Provincial Court of La Coruna 27 July 2015, Fridama filed a request for bankruptcy incident. He asked the Judicial compensation credit and debt Gama. He based his claim on the art. 58 of the Bankruptcy Act (LC). The defendants were Gama and D. Olegario (Range trustee). Both called for the dismissal of the judgment on the grounds that not satisfied with legally established requirements for compensation. Range requested, also, for costs of the plaintiff.

Primera Instancia

The Commercial Court No. 3 of Pontevedra gave judgment on 11 December 2015. Dismissed the lawsuit filed by Fridama. I consider, as the defendants, that there was no compensation. It ruled that the debt was determined by final judgment after the bankruptcy declaration. He condemned the plaintiff to pay the costs.

Provincial Court

Fridama appealed. The Provincial Court of Pontevedra resolved sentence 5 May 2016. part the appeal. He revoked for costs and confirmed the inappropriateness of the compensation judicial. The ruling was supported by case law on the compensation of art. 58 LC. Said art. 21.1.5º LC, over the period of one month to creditors to inform the insolvency administrators their claims. In relation to Article, Hearing added: “It is in this process where the creditor has involved the existence of credit and apply for compensation…”. Fridama reported only credit recognized by sentence 16 October and that was before the competition. It never claimed potential compensation with credit which could be obtained from the pending procedure Provincial Court Coruna. Therefore, Hearing rejected compensation "to not initiating compensation, even outside so conditioned, the procedure legally provided ... ".

Supreme Court

Fridama appealed. As respondent, D. Olegario (Range trustee). The plea was the infringement, misapplication, Art. 58 in relation to arts. 21.1.5th and 85 LC. The hall and rejected the plea based on:

– The case law on the prohibition of compensation in bankruptcy. He pointed, Case 46/2013 the effects of insolvency claims. These credits are subject to the principle of the condition of creditors;. Principle prevents, exceptions, to be satisfied regardless of agreement or settlement. Thus, Hall added that "Article. 58 LC prohibits compensation claims and debts of the insolvent, unless compensation requirements had existed prior to the declaration of insolvency ".Compensation effects occur automatically but only when enforced by one of the reciprocal creditors. The law allows compensation claims and debts that could have been done before the bankruptcy declaration. and not inverted, when before the bankruptcy declaration they not met the legal requirements for compensation.

– The nature of the credit contract arises. The Chamber noted that there was before the liquidation of a single contractual relationship. But the credits came from different contractual relationships. They could not be confused with the purchases a single contract of successive tract or related contracts, because in those cases would not proceed the application of art. 58 LC. Thus, the sentences were not applicable 188/2014 of 15 April 428/2014 of 24 July.

– The requirements for compensation before the bankruptcy declaration. Benefits due should be of the same nature, homogeneous and fungible (art. 1196 CC). Debts must be liquid (art. 1196.4 CC), overdue (art. 1196.3 CC) and enforceable (art. 1196.4 CC). Requirements that were not met in the case, for the amount was not settled not be determined.

– Preclusion of the power to enforce compensation. Chamber ruled on which is the time that must necessarily requested compensation when it takes place. It found that none exists. But, It is logical that if requirements for compensation have been fulfilled before the bankruptcy declaration, it is requested with urgency. So good, Hall did not rule out that while compensation is not verified, the creditor can communicate your credit without it being precluded the right to offset.

Finally, the High Court ruled that Fridama could not offset credits because when the contest was declared debt was litigious. Specifically, It was pending the resolution of appeals presented by both parties. Thus, the Chamber ruled that "There is prohibition art compensation. 58 LC, because when the contest was declared, the credit Gama had against Fridama was not liquid, because there was no certainty as to the amount.”


In bankruptcy proceedings, there is only the possibility of compensation of debts when they are liquid, due and payable before the bankruptcy declaration. If these requirements are not met, governs the prohibition contained in Article. 58 LC on compensation.

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