SUPREME COURT RULING OF APRIL 9, 2014, NO. 175/2014: IN THE RESCISSION OF THE ASSIGNMENT IN PAYMENT AGREEMENT (DACIÓN EN PAGO), THE CREDIT OF THE NONDEFAULTING PARTY IS AN INSOLVENCY CLAIM AND NOT AGAINST THE INSOLVENCY ESTATE
The assignment in payment (dación en pago) of debt is an act extinguishing obligations and not a bilateral agreement. Therefore, its rescission leads to an insolvency claim for the non-defaulting party.
This judgment discussed the classification in insolvency of the non-defaulting party of an assignment in payment agreement (dación en pago) should the transaction be rescinded. The insolvency administration requested the rescission of an agreement the insolvent company had with one of its creditors, under which it delivered one of its assets to the creditor in payment of its debt. The first instance judgment declared the rescission of the transaction and, based on a “coherent and logical interpretation of the system,” classified the credit as ordinary, whereas the provincial court of appeal, literally applying article 73.3 of the Insolvency Act, considered it was a claim against the insolvency estate. The Supreme Court quashed and cancelled this latter decision.
As a starting point, the Supreme Court compared this case to one of unilateral payment by a debtor before insolvency, stating that the rescission of a unilateral act of disposal, such as payment, does not imply the inefficacy of a transaction generating the payment obligation intended to be satisfied with the challenged act. The rescission would only affect the payment, with the obligation to restore it arising for the recipient and without it losing its credit right which, because it existed before the declaration of the insolvency, is considered to be an insolvency claim.
The judgment contemplates the assignment in payment (dación en pago) as an agreement of intentions under which the creditor agrees to receive from the debtor one thing for another with the effect of extinguishing the original obligation (a means of settling). Its rescission would render this settling effect of the pre-existing obligation ineffective and, as a result, the creditor would again become the holder of the credit for the amount it had before the dación en pago as an insolvency claim.