Civil liability for unfounded application for bankruptcy

Aristides Manuel da Silva Rodrigues de Almeida

Keywords

Tort law; Unfounded claim of insolvency; Improper presentation; Procedural accountability; Liability in the case of intentionally or negligently; Compensation

Abstract

The 22nd article of the CIRE in our legal system represents an estimation of liability, particularly in which concerns article 483rd of the Civil Code, which is not to be confused with a mere ground of procedural accountability such as litigation in bad faith, with which it can perfectly coexist. The unfounded claim of insolvency is one that lacks foundation, which is deducted from occurring without the facts forming the legal provision of insolvency. The improper presentation is the application of the debtor tending to his own declaration of insolvency without being checked the situation of impossibility of performance of arrears.

Once the application relies within the insolvency evidentiary facts set out in the CIRE, there will be no responsibility of the applicant if those facts come to be demonstrated but the insolvency ends up not being enacted, particularly because the lender has proven to be solvent. If the request is founded, the debtor who wishes to demonstrate that the claim was unfounded and demand responsibility of the applicant must apply for and obtain prior review of the decision that declared bankruptcy, if the requirements of the application for review are met.

The article 22nd of the CIRE is not a special rule for the general rule of article 484th of the Civil Code, and therefore does not preclude the application of this specific prediction of unlawfulness in cases where the application for bankruptcy relies on false facts than can affect the credit and good name of the defendant debtor. In such cases, the person of interest may apply a claim comprehending the two grounds of liability, condition in which the responsible subject should answer for the consequences of the baseless claim, even if he has only acted negligently. If bankruptcy is required by the lender, only the losses suffered by the debtor are compensated; when the debtor submits himself to the bankruptcy only the losses suffered by creditors are compensated.

The article 22nd of the CIRE protects from damages in the sphere of credit relationship  that otherwise would not be protected, but that should not change this standard  into a special prediction of pure economic damages, enabling any  third party in interest to trigger this mechanism of accountability using the declaration of insolvency. The liability provided in the standard has as requirement the intent - in any of its forms - from the author making the request, not simply for the fact that he acted with mere negligence, even gross. This solution can only be defended by lege ferenda.