Bankruptcy instruments as prevention tools: pre-bankruptcy, contest and second chance
Unfortunately, the economic effects of the pandemic will extend well beyond the lockdown period. Several economic studies predict that during the coming months many companies and self-employed workers will experience serious economic difficulties or may even be forced to close their businesses.
Faced with this dark panorama, we must try to prevent the situation and minimize the damage as much as possible. It is common for the entrepreneur to have his personal assets compromised, either because he acts as a self-employed person, or because he has been forced to guarantee the company's credits with his personal and family assets.
By Jaume Alonso-Cuevillas, Lawyer and Economist, Professor in Procedural Law at the UB
In the event of liquidity problems (even punctual), creditor claims and consequent seizures can end up leading to a situation of economic and personal bankruptcy.
To prevent this situation, bankruptcy legislation provides for some mechanisms that, when used well, can avoid greater evils.
Filing bankruptcy is a legal obligation for any company or individual that cannot meet its obligations punctually. Aside from this legal obligation, bankruptcy mechanisms can help save companies, businesses and assets.
In anticipation of the serious economic crisis that we are already facing, the recent RDL 16/2020 has postponed the obligation to file for bankruptcy (for those who are legally obliged to do so due to not being able to meet current due dates) until January 1, 2021. However, this temporary legal exception (cosmetic measure to disguise the 2020 numbers and try to lighten the workload of the Commercial Courts) does not solve the main problem. If the businessman stops paying the debts that are due, claims from creditors, public and private, will rain down, and embargoes will begin that will further worsen the situation (possibility of obtaining credit or better payment conditions, etc.).
Pre-bankruptcy for seizures and allows for a certain time margin to renegotiate terms and conditions of debts. A period that may be sufficient oxygen when it comes to a simple treasury problem derived from the lack of income during confinement. On the other hand, if the company has taken advantage of a force majeure ERTE in accordance with RDL 8/2020 (with the obligation to maintain employment for six months from the resumption of activity), the presentation of the pre-insolvency proceedings will be necessary to be able to adjust the workforce without incurring the risk of having to pay unpaid social contributions and possible associated sanctions.
If the insolvency situation persists and this renegotiation is not fruitful, bankruptcy proceedings must be filed. Although in Latin culture this is experienced as a failure, the truth is that the bankruptcy is, without a doubt, the best solution in case of insolvency. In addition to maintaining the legal prohibition of new foreclosures or seizures and also stopping the accrual of new interest on overdue credits, the bankruptcy makes it easier to readjust the structure of the company or business. Among these, the possibility of processing employment regulation files stands out under much more advantageous conditions than outside the bankruptcy (see in more detail the article on the adoption of labor measures in bankruptcy proceedings on our website www.alonso-cuevillas.eu/laboral -bankruptcy), as well as the possibility of terminating certain contracts (rentings, leasings, swaps, etc.) avoiding or reducing the penalties that these early resolutions generally entail.
If with the corresponding restructuring the company or business is viable, the objective is to achieve a bankruptcy agreement with the creditors that allows outstanding debts to be satisfied with write-offs and waits, that is, postponed in time and reduced in amount.
If the company is not viable or the agreement cannot be reached, liquidation will have to be carried out. In the case of companies, if things have been done well and the bankruptcy has not been filed late (with respect to the legal deadlines), the bankruptcy will end without personal consequences for the businessman. In another case, a possible guilty qualification of the bankruptcy could entail not only the disqualification of the administrator but also, even, the sentence to having to personally respond for unpaid credits.
When it comes to a natural person (self-employed person or businessman who has personally financed social debts), it may be advisable to resort to the second chance mechanism that allows obtaining the benefit of exoneration of unsatisfied liabilities (BEPI). If certain requirements are met, the BEPI definitively exonerates the debts, thus allowing a second opportunity to start over.
Bankruptcy Law is a transversal subject (legal, commercial, procedural, economic, accounting,...) and complex that, well applied, allows very positive results (or, if preferred, avoids very negative results).
It is advisable to put yourself in the hands of qualified and specialized professionals, since, with the crisis, everyone will now sign up to be a bankrupt.