Proceedings for approval of an arrangement and the running of the limitation period
What is the situation of a creditor in proceedings for approval of an arrangement (PZU) in terms of the time limitation period? The restructuring law does not say anything about this.
There is no describing the effect of the initiation of the PZU on the running of the statute of limitations for the claims covered by the arrangement in the Restructuring Law. The statutory regulation, which provides for the suspension of the running of the statute of limitations, is applied only in the case of sanitation, arrangement and accelerated arrangement proceedings (Article 259(4) p.r., Article 312(6) p.r.). So what is the situation of a creditor in PZU?
Acknowledgment of debt
In the case of proceedings for approval of an arrangement, we apply the general provisions of the Civil Code governing the effect of certain conduct of the debtor on the running of the statute of limitations (Article 123 of the Civil Code). One of these is the statement of acknowledgment of debt. Therefore, when examining the issue of the statute of limitations of a claim during PZU, it is necessary to determine whether, in the course of restructuring activities, the debtor made a statement of acknowledgment of debt.
According to Article 226a (1) of the P.R., after the preparation of the inventory of claims, the inventory of disputed claims and the preliminary restructuring plan, the supervisor of the arrangement may announce the determination of the arrangement day.
If the debtor prepares the inventory of claims before announcing the determination of the arrangement day in the P.R., it can be assumed that the claim has been improperly recognized by the debtor. In this situation, the debtor’s behavior can be read as externalizing his awareness of his obligation to provide performance.
At the same time, it is a kind of confirmation that the creditor is served with certain claims[1]. It is essential, however, that this statement reach the creditor. At this point, it is necessary to stipulate that the effect of interrupting the statute of limitations for the claim indicated in the list of claims will occur under one condition. This will happen when the creditor obtains knowledge of the inclusion of the claim serving him in such an inventory. This is because in such a case the creditor may reasonably assume that the debtor is aware of the existence of the obligation and the will to fulfill it[2].
Thus, if in the course of the PZU the debtor has placed the claim in the prepared list of claims, while the creditor has become acquainted with the contents of the card covering the claim (e.g., he has become acquainted with the list of claims submitted to the file maintained in the NCR teleinformatics system), it may be assumed that the debtor has made a statement of acknowledgment of his debt. The effect of such a statement, i.e., the interruption of the statute of limitations, occurred the moment the creditor became aware of such a statement.
Conclusion of an arrangement
The purpose of the procedure for approval of an arrangement (Article 210 p.r. et seq.) is for the debtor to enter into an arrangement with its creditors.
The arrangement approved by the creditors in the restructuring procedure determines the manner of performance of the debtor’s obligations covered by it. It also modifies the debtor’s rights and obligations relative to the original content of the debtor’s existing legal relations. The content of the arrangement redetermines the due dates of debts, and thus the beginning of the running of the statute of limitations. The due date counts anew from the date of payment of the receivables in accordance with the content of the arrangement[3].
If the restructuring of liabilities consists in postponing the payment dates of the receivables covered by the arrangement, the restructured receivables, together with any default interest, will become due on the date specified in the arrangement. The day following the payment date, the statute of limitations on the receivables (individual installments according to the schedule described in the arrangement) will begin to run.
The running of the statute of limitations is interrupted by the approval of the arrangement. This is the final element of the process of accepting the arrangement. As a constitutive act, the arrangement determines the method and term of performance. The new term of performance, which is a modification of an existing obligation, determines the start of the running of the statute of limitations. Such rules are uniform in nature for all composition claims. And this is regardless of the source of their origin.
In conclusion, as soon as the court order approving the arrangement becomes final, it will be necessary to recalculate the statute of limitations.
[1] Cf. the judgment of the Supreme Court of March 9, 2004, I CK 443/03, LEX No. 358781.
[2] With regard to a bankruptcy petition, a similar view is expressed in: P. Poppe, M. Schulz, Interruption of the statute of limitations due to the filing of a debtor’s bankruptcy petition, PPH 2012 No. 11, p. 20.
[3] F. Zedler, The impact of restructuring proceedings on the running of the statute of limitations for social security debts, Polski Proces Cywilny 2017, No. 4, pp. 602-611, A.J. Witosz, Arrangement and the issue of statute of limitations, Restructuring Advisor 2017, No. 4, pp. 61-67, and R. Szaraniec, The problem of statute of limitations for public-law liabilities in the course of restructuring proceedings, Restructuring Advisor 2017, pp. 68-71.
