Insolvency procedure. Award at public auction in the insolvency procedure. Refusal of the judicial liquidator to conclude the contract in authentic form after the award. Consequences

DREPTUL AFACERILOR/ASPECTE DE DREPT PROCESUAL

Abstract

Upon the award of the property offered at public auction appears the ownership-transfer bilateral legal act, and the award report, signed by the insolvency practitioner, represents the title deed of the adjudicator that serves as proof of ownership of the purchased property. Since some legal acts must be concluded in authentic form, according to the law, in such cases, the award report has not the ownership effect and is not a title deed, but only a legal nature similar to a promise to sell, in by virtue of which, both parties are obliged to appear before the notary public, for concluding the ownership-transfer contract in the authentic form required by law. However, once the sale at auction is completed, according to the regulation approved by the creditors, the judicial receiver can no longer invoke the principle of maximizing the debtor's property in order to justify his refusal to conclude the authentic deed of sale in authentic form.

On the other hand, the successful tenderer is not entitled to obtain a decision in lieu of a contract, since the judicial receiver is required to comply with the court's decision, as a participant in the procedure and ignoring the provisions of court decisions is a sufficient ground for his replacement from office ex officio or at the request of the interested person [Article 45 letter f)] of Law no. 85/2014). As long as, for the potential refusal of voluntary enforcement, there are procedural remedies in order to conclude the contract as provided by law – in authentic form by the notary public – there is no reason for this route to be bypassed, by issuing a court decision in lieu of a contract, at this stage of the procedure.