Fraud against creditors and culpable non-performance as grounds for inefficiency of the contract

DEZBATERI

Abstract

The present study contains reflections on a number of case law solutions in domestic judicial practice. Issues relating to (i) alleged fraud against creditors' interests, (ii) the invalidity/inefficiency as a sanction of acts allegedly concluded by the debtor in disregard of creditors' interests, and (iii) the issue of non-performance of contracts will be addressed, together with the sanctions available to the contracting parties.

The solutions under discussion first of all address aspects (of substantive and procedural law) related to the fraud against creditors' interests, which is raised within or outside insolvency proceedings.

The following analysis also aims to capture the discrepancy between the formal grounds invoked to justify a certain sanction of non-execution and the correct qualification of the substantive/procedural mechanism available to the creditor, with all the consequences that follow from this gap. Also in this context, the study also aims at critically investigating a solution of the case - upheld in the appeals - which led to the de facto limitation, in disregard of the spirit and the letter of the law, of the scope of applicability of the plea of non-enforcement.

Beyond highlighting the concrete rulings given by the courts, the prefaced study attempts to outline - with a view to a clearer delimitation - some legal mechanisms often confused and/or incompletely understood in legal practice.

Keywords: paulian action, good faith, illicit cause, plea of non-performance, fraud, absolute nullity, (in)opposability, unreasonable price, contractual liability, rescission