Since the entry into force of Book XX of the Code of Economic Law (WER) of 01.05.2018, a lot of ink has already been spilled about the principle of “the remission”, which has replaced “excusability” from the old bankruptcy law (albeit in custom shape).
What exactly does the remission entail and how can it be obtained by the bankrupt? This question is answered in the first part of this contribution. The second part zooms in on the consequences that the waiver of the bankrupt can have on the right of recovery or recourse of the surety.
- The waiver explained in more detail
The cancellation is a mechanism whereby the so-called 'residual debts' (ie the debts that have remained unpaid at the end of the bankruptcy) are definitively extinguished (Articles XX.173 and 174 WER).
The waiver is granted almost automatically by the insolvency court, provided that the bankrupt has submitted a request to that effect 'timely': preferably together with the declaration of the bankruptcy via RegSol (the digital Central Solvency Register for the management of insolvency files) and no later than three months after the publication of the bankruptcy judgment in the Belgian Official Gazette (article XX.173, §2 WER).
Since the judgments of the Constitutional Court of 22.04.2021 (no. 62/2021) and 21.10.2021 (no. 151/21), this three-month period no longer constitutes an expiry period, since the Court ruled that the provision of Article XX.173, §2 WER violates the principle of equality. As a result, a request for remission can also be submitted after the three-month period has expired.
The trustee in bankruptcy is then obliged to submit a report in RegSol within one month of the request for remission, in which he/she makes comments regarding the circumstances that may lead to the establishment of manifest gross errors on the part of the bankrupt, who predate the bankruptcy judgment and that contributed to the bankruptcy.
The bankruptcy trustee, the public prosecutor and the creditors can oppose the remission as long as no decision has been made by the insolvency court or at the latest three months after the publication of the judgment of remission (art. XX.173, §3, first member WER). However, they bear the heavy burden of proof of Articles XX.224 and 225 WER, which can, however, be alleviated somewhat by the remarks of the trustee in the aforementioned report. The insolvency court may decide to grant the waiver in full, in part or not at all and will issue a decision at the latest when the bankruptcy is closed. The bankrupt can request the insolvency court for an early ruling on the waiver, as soon as six months have passed since the opening of the bankruptcy.
The waiver not only has favorable consequences for the bankrupt himself, but also for his (former) spouse and (former) legal cohabitant, who has personally committed himself for the debts that the bankrupt has entered into. during the duration of the marriage or of legal cohabitation (art. XX.174, first paragraph WER).
However, the waiver of the bankrupt has no consequences for the personal or joint debts of the (ex-) spouse and (ex-) legal cohabitant, if they arise from an agreement concluded by him/her. irrespective of whether those debts were entered into alone or together with the bankrupt, and which are foreign to the bankrupt's professional activity (art. XX.174, third paragraph WER).
- The consequences of the waiver on the right of recovery or recourse of the surety
The waiver of the bankrupt also has far-reaching consequences for the right of recourse of the surety who, during the bankruptcy, has paid a debt of the bankrupt and who only exercises recourse or recourse after the closure of the bankruptcy.
In its judgment of 24.06.2021, the Court of Cassation decided that if a debt of the bankrupt (current bankruptcy) is paid by the surety, this surety can no longer exercise recourse or recourse after the closure of the bankruptcy, if the the bankrupt has already obtained the remission (Cass. 24 June 2021, AR C.20.0073.F, TBH 2021, ep. 7, 963).
With this decision, the Court puts an end to the discussion that has prevailed for years in case law and legal doctrine and opts for the tenor that states that the right of recourse or recourse of the surety arises together with the suretyship obligation, even if it only becomes due and payable later.
A surety who thus pays only after the bankruptcy and does not declare a claim, appears to bear the consequences of the bankruptcy of the bankrupt and can no longer successfully exercise his recovery or recourse after the bankruptcy has been concluded.
The surety therefore seems to be well advised, even if his/her recovery or recourse claim is not yet due and payable at the time of the bankruptcy judgment, to immediately declare his/her claim and the amount of the suretyship (whether or not provisionally). According to Article 2032, 2° old BW, the surety has a so-called anticipatory right of recovery or recourse and the surety, even before paying, can sue the main debtor to be compensated by him if the main debtor is declared bankrupt. was declared.
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