Practical aspects of making deductions from receivables in restructuring proceedings
Set-off plays an important role in economic turnover. It is an effective way to satisfy claims. In relation to the claim in which the offsetting party is the creditor, it is compelled to satisfy it. The opening of restructuring proceedings does not extend the scope of admissibility of deductions. However, it entails some limitations, which will be discussed in practical aspects.
Admissibility of set-off in restructuring proceedings
In a situation where two persons are debtors and creditors to each other at the same time, each of them may set off its claim against the claim of the other party. The condition is, however, that the subject of both claims are money or things of the same quality, marked only as to species. It is also important that the claims are due and can be pursued before a court or before another state authority.
In the restructuring proceedings, however, the legislator modified the requirements that must be met by set-off claims. Changes regarding deductions made during the restructuring proceedings are included in art. 253 pr. rest. and are the special provisions referred to in Art. 505 point 4 k.c. This means that if a set-off is made contrary to the rules resulting from the provisions in question, there is no effect in the form of debt redemption.
Precise determination of debts
The creditor’s submission of a set-off statement in the course of restructuring proceedings requires the indication of the due amount of the claim submitted for set-off. If the creditor is entitled to several claims, he should specify which claim and to what extent he presents for set-off. Otherwise, the declaration will be ineffective due to insufficient expression of the intention to cause the effects of the set-off.
For example, the creditor’s statement submitted to the debtor, in which the creditor will deduct “all his claims against the Debtor against the Debtor’s claim under the sales contract of April 4, 2022 in the amount of PLN 40,000.00” (concluded after the opening of the proceedings, will not be effective) system). The collection of claims described in this way may include personal claims that arose before the date of opening the restructuring proceedings (covered by the arrangement), with respect to which the set-off is prohibited, as well as personal claims arising after that date (not covered by the arrangement), which are not covered by the prohibition under article 253 sec. 1 point 1 p.r.
Deduction “despite prohibition”
The restrictions described in the Restructuring Law apply only to receivables covered by the arrangement and apply in the course of accelerated arrangement proceedings, arrangement proceedings and remedial proceedings. There are no obstacles for claims arising from the employment relationship to be the subject of the deduction declaration. Set-off may also refer to claims secured on the debtor’s assets by a mortgage, pledge, registered pledge, treasury pledge, maritime mortgage or transfer of ownership of a thing, claim or other right to the creditor, but only in part covered by the value of the collateral, unless the creditor has agreed consent to include his claim in the arrangement (see Article 150(2) first sentence R.L.) Due to the fact that the debtor should perform his obligations arising after the opening of restructuring proceedings, the prohibition of set-off also does not apply to those claims that are of a current nature (see Art. 150(1)(1) a contrario R.R., Art. 211(4) R.L., Art. 165(1) R.L.).
Submission of a statement of deduction is possible when the subject of both claims are money or items of the same quality, marked only as to the species. In restructuring proceedings, however, it is possible to set off the creditor’s non-pecuniary claim against the debtor’s pecuniary claim.
Restructuring applies equally to monetary and non-monetary liabilities. If the creditor, within one week from the date of receipt of the notice of the date of the creditors’ meeting with a copy of the arrangement proposals, has objected to the restructuring of his claim as a non-monetary claim, by submitting a statement to the supervisor or administrator, or due to the nature of the non-monetary claim, restructuring is not possible, the claim changes into a claim money.
Therefore, the conversion of a non-pecuniary claim into a pecuniary claim may lead to an extension of the material scope of application of the provisions governing set-off in restructuring proceedings.
This text is an excerpt from a practical commentary prepared by the author for the Wolters Kluwer publishing house. The full version of the commentary is available to users of the LEX system: https://sip.lex.pl/#/publication/470194725/potracenie-wierzytelnosci-w-postepowaniu-restrukturyzacyjnym