Offset of claims under restructuring law

Dawid Zwijacz

5. December 2019

A business activity depends, among other things, on financial liquidity. An enterprise cannot continue its operations if any enforcement is pending against it, e.g. if bank accounts used to pay salaries or supplies are seized.  Doing business with bank accounts blocked is at least very difficult or at worst impossible at all. Moreover, certain actions may trigger criminal liability if taken under seizure.

In order to lawfully continue business with a goal of improving your financial situation and at the same time escaping court enforcement seizures, you may consider one of the restructuring proceedings.
Restructuring law sets certain rules for enforcement against those who apply for restructuring.

WHEN IS A CLAIM DUE

The first condition is quite easy to understand. The second condition is less clear especially that the Civil Code does not define “due claim”. But it is assumed that a claim is due when a creditor is in a legal position to demand satisfaction of that claim. The most typical examples are amounts payable by the payment deadlines shown in contracts or invoices. If a fee or price is not paid by the payment deadline, it becomes due and the creditor may seek its payment e.g. in court.
You should note that restructuring law provides for short claim offset deadlines. The creditor may submit an offset statement within only 30 days of the date of opening the accelerated voluntary arrangement proceedings, and if the grounds for an offset arose after that date – within 30 days from the date on which the grounds for the offset arose.

OFFSET OF CLAIMS UNDER BANKRUPTCY LAW

Two claims may be offset if they existed on the date of declaring bankruptcy. This applies even if one of those claims is not yet due (Article 93 of the Bankruptcy Act).
Offset of claims is not allowed if the creditor:

• has acquired a debt from another entity after the date of declaring bankruptcy
• or during the year before declaring bankruptcy and knew that there were grounds for declaring bankruptcy.

Just like under restructuring law, an offset is also allowed if it basically fulfils all conditions specified by the mandatory provisions of the Civil Code (Articles 498505). But please note that bankruptcy law permits the offset of claims that are not yet due on the date of declaring bankruptcy.

To offset claims effectively under bankruptcy proceedings, the creditor must report his claim. For this purpose, the creditor must submit the offset statement along with the claim report.