The SC adopts a decision on the inclusion of contractual set-off agreements that document a single financial transaction within the scope of application of Royal Decree-Act 5/2005 and on the insolvency classification of the credits resulting from financial swap, thus settling the disparity of criteria that existed in our lower case law with respect to such matters.
For the SC, article 5 of the Royal Decree-Act 5/ 20058 refers to a plurality of financial transactions whose respective settlements will be set-off to give rise to a single net balance. This plurality does not exist in the case of settlements resulting from a single financial transaction (the swap agreement), but it is instead an arithmetic transaction for settlement or deduction of a single agreement.
Furthermore, it states that the swap is not an agreement w ith reciprocal obligations for the parties, it but generates obligations for only one of the parties in each one of the settlements. Therefore, article 6 1.2 LC envisaged for agreements with reciprocal obligations is not applicable, so the credit resulting from early termination of the agreement will be an insolvency credit and not a credit against the insolvency estate.9
Consequently, if the set-off agreement refers to only one financial transaction, Royal Decree-Act 5/2005 is not applicable and the credits deriving fro m the agreement will be classified as insolvency credits, regardless of whether the settlements are before or after the declaration of insolvency.