The Supreme Court reiterates the doctrine in its rulings of February 12 and 19, 2013, although in this case, unlike the above rulings, in which the credits were classified as insolvency credits, it concluded that instalments resulting from one finance lease agreement falling due after the declaration of insolvency are claims against the insolvency estate.

The insolvent company had signed nine finance lease agreements with several financial institutions. Due to its inability to pursue its business activity, the insolvent company requested termination of the finance lease agreements in the interest of the insolvency, since the assets leased under those agreements were no longer needed. The Commercial Court classified the instalments falling due after the declaration of insolvency as claims against the insolvency estate.  The Provincial Court partially revoked the ruling and classified the credits for the unpaid instalments under the finance lease agreements as insolvency credits. Only one of the financial institutions appealed the ruling before the Supreme Court, on the grounds that the agreement involved obligations pending performance by both parties and, therefore, the instalments should be classed as claims against the insolvency estate under sections 61 and 62 of the Insolvency Act.

The Supreme Court invoked its interpretation of section 61.2 of the Insolvency Act with regard to finance lease agreements, specifically the nature of credits corresponding to instalments falling due after the declaration of insolvency, as set out in the Supreme Court ruling of February 19, 2013. In this ruling, generally, if we consider the finance lease in the abstract, the Supreme Court acknowledges that it is an agreement with obligations pending performance by both parties, i.e., the lessee must pay the rent and the lessor must provide the use of the item, beyond its mere delivery, for the full term of the agreement. However, parties must examine the specific conditions in each case, to identify the lessor’s entitlement and the lessor entity’s obligation to supply the item. To resolve whether the legal relationship established under the finance lease agreement is still synallagmatic after the declaration of insolvency, since both parties have outstanding reciprocal obligations, the conditions validly agreed by the contracting parties must be met. The Supreme Court reached that same conclusion in its ruling of February 12, 2013.

In this case, the Supreme Court noted a circumstance that influenced the decision on that issue: in the interest of the insolvency estate, the insolvent party terminated the agreement under paragraph two of section 61.2 of the Insolvency Act, which , due to its systematic position, implies that when the declaration of insolvency was made , the agreement included reciprocal obligations pending performance by both parties. The Supreme Court upheld the appeal and declared as claims against the insolvency estate the credits arising  from the instalments payable under the finance lease agreement entered into by the insolvent company and the appellant financial institution, falling due after the declaration of insolvency and until the termination of the agreement.1