Legal Insight
April 2023
Danae Stamarga, LL.M
Summary: This article sets out the things (objects, income, rights, etc.) which, in the event of bankruptcy, are not included in the bankruptcy estate from which the creditors of the bankrupt debtor are to be satisfied, but remain in the possession and administration of the latter to satisfy his needs.
Introduction
One of the main consequences of bankruptcy is expropriation. This means that when a person is declared bankrupt, as soon as the judgment is published, he is automatically deprived of the administration (disposal or management) of his bankruptcy property, and the administration of this property is now taken over by the bankruptcy trustee for the purpose of satisfying the bankrupt's creditors. A further consequence of this is the separation of the bankrupt's property into property subject to expropriation (bankruptcy property) and other property. In this article, we will be concerned with the latter, i.e. all of the bankrupt's property rights that are not assigned to the satisfaction of the bankrupt's creditors, but remain under the free administration of the bankrupt to satisfy his own needs.
In particular, the following are not considered part of the bankruptcy estate:
1. The annual income of a debtor
In Article 92 § 2(a) of the Civil Code, as amended by Article 35 § 3 of Act No. 4818/2021, provides that any (net) annual income of the debtor is excluded from the bankruptcy estate, to the extent that it does not exceed the amount of the annual reasonable living expenses of the debtor and his family members or twelve times the amount of the unseizable amount, according to the provision of Article 31(2) CEDE, whichever is higher. The annual income includes the debtor's income, wherever it comes from, even if it comes from items belonging to the bankrupt's estate and which have come under the administration of the receiver. Thus, in addition to wages and pensions - in any event unseizable (see also below under point 2(e)) - the debtor's income is deemed to be income from real estate, dividends from shares, interest on bonds, etc. Furthermore, the above provision refers to the debtor's net income, i.e. the above calculation should be made after deduction of taxes and social security contributions.
It should be noted that the unconfiscated limit, under the provision of paragraph 2 of Article 31 KEDE, currently amounts to € 1,250 per month (it is expected, however, that within the year a new regulation will be implemented, according to which each debtor will be able to increase the limit of his unconfiscated account under specific conditions), while the reasonable living expenses according to the ELSTAT table amount for an adult on an annual basis 6.448 € (see here for more details). Therefore, assuming that the debtor declared bankrupt is an adult, without family or other dependants, the annual income, which is excluded from the bankruptcy estate and remains available for personal needs, would amount to 15,000 € (i.e. 1,250 € x 12).
In paragraph 3 of Art. 92 of the Civil Code states that "the debtor's annual income shall be excluded from the bankruptcy estate, regardless of the amount, when, upon his application, the bankruptcy court finds that the bankruptcy estate includes the debtor's main residence and/or other fixed assets exceeding in value ten percent (10%) of his total liabilities and their minimum value is not less than one hundred thousand (100. 000), excluding those acquired during the twelve (12) months preceding the filing of the bankruptcy petition. The above conditions, i.e. the existence of other fixed assets of the debtor that exceed 10% of his liabilities in value and are not less than €100,000, justify the exclusion of his income from the bankruptcy estate, upon his request. However, these assets must not have been acquired within the 12 months preceding the filing of the bankruptcy petition. Whereas, according to paragraph 3 of the same article, if the debtor's annual income exceeds five times the reasonable cost of living, the excess amount will not remain in the hands of the debtor but will be included in the bankruptcy estate.
2. The unseizable assets according to the Code of Civil Procedure (see Art. 92 § 5), viz:
(a) things that are absolutely necessary for the basic living needs of the debtor and his family. The condition of what is absolutely necessary is judged objectively, while it is accepted that the basic necessities are sought on an individual basis, based on the debtor's social and spiritual position and the individual living conditions of the debtor and his family at the particular place and time (e.g. bedding, ordinary clothing, personal hygiene items, colour television, air conditioner, washing machine, table and chairs, see in this respect 401/2001 MPA),
(b) things necessary for the work of persons who, through their personal work, acquire what they need to live. As such have been judged by case law: a taxi car, in which the owner is personally employed (1268/2007 BPCab, 13324/2010 BPThes), a retailer's truck (7/2000 EirThermu), a hairdresser's dryers (1925/1971 EirAth), a garment manufacturer's electric sewing machine and scissors (2968/1971 BPA), etc,
(c) things which may be subject to immediate deterioration (e.g. things intended for eating, flowers and products with an imminent expiry date),
(d) maintenance claims (whether arising from law or from a last will and testament provision), as well as claims for spousal contributions to the needs of the family,
(e) claims for wages, pensions or insurance benefits,
(f) any Community aid or subsidies of any kind in the hands of the Hellenic Republic as a third party, until they are deposited in the bank account of the beneficiaries or otherwise paid to them, as well as claims awarded against the Greek State by the European Court of Human Rights, pursuant to Article 41 of the European Convention for the Protection of Human Rights (except those awarded to compensate for material damage).
3. Those unseizable under other statutory provisions (see Art. 92 § 5), such as, but not limited to:
The partnership share in partnerships (CC 761, CCC 982) and the cooperative share in a civil partnership (Art. 3 § 5 of Law 1667/1986), the right to take over the publicly deposited property for the purpose of extinguishing a debt under CC 433, the life annuity from a gift, if it has been established with the condition of being indefeasible (CC 843 § 2), etc.
4. Inalienable Rights
The bankruptcy estate also does not include rights and claims which are provided for by law and under the conditions of the law as non-transferable, such as usufruct, "unless otherwise specified", (CC 1166) and tenancy (CC 1185), the spouses' claim to the acquisitions (CC 1401), the cooperative share in an agricultural cooperative (Art. 2169/93), the moral right of the author (Articles 1 and 12 of Law 2121/93), etc.
5. Personal rights, such as:
The right to a name, the right to accept or renounce inheritance, things that are adapted to the debtor's body (orthopedic prostheses, etc.), the right to revoke a donation and the claim for unjust enrichment due to revocation of the donation (unless the revocation was made before the declaration of bankruptcy), the claim for monetary compensation for moral damage or mental anguish (2/2012 AP), etc.
6. Post-bankruptcy property
With the exception of the debtor's annual income, for which there is a special arrangement, which has been discussed above, anything acquired by the debtor after the declaration of bankruptcy is not included in the bankruptcy estate. Thus, if the debtor acquires things from inheritance, donation, parental benefit, etc., profit from gambling or betting, income from some personal work, etc., after the declaration of bankruptcy, then the above are not considered part of the bankruptcy estate. The decisive point is therefore the moment of the declaration of bankruptcy, which should be the moment when the relevant decision is published in the court hearing.
However, interest and other periodic payments, ancillary claims or rights arising from a debt or a principal right already existing - the debt or right - before the declaration of bankruptcy are expressly excluded from the post-bankruptcy estate, even if they arise after the declaration of bankruptcy (Article 92(8) of the Bankruptcy Code). For this reason, the following are excluded from the post-bankruptcy estate and included in the bankruptcy estate: the contractor's remuneration of a bankrupt contractor, which consists of a provision on the land (323/1989 AP, 510/1990 Efath), the rents due to the debtor (906/1996 AP) or the insurance premium paid for the destruction of property belonging to the bankruptcy estate. Thus, these claims are included in the bankruptcy estate even if they are already seized.
A further exception, as far as the fate of the post-bankruptcy estate is concerned, is the satisfaction of group creditors, i.e. creditors whose claim arose or dates back to after the bankruptcy and arises from the action of the receiver or debtor or is linked to the assets of the bankruptcy estate. In other words, the latter's claims are satisfied from both the bankruptcy estate and the post-bankruptcy estate when the former is insufficient to satisfy them. The latter may occur, for example, if the trustee chooses to continue a pending contract. In this case, the counterparty becomes a group creditor and is satisfied from both the bankruptcy estate and the post-bankruptcy estate.
Epilogue
It follows from the above that it is important for any person who is declared bankrupt to know which of his rights, claims or other assets he will continue to dispose of and administer to meet his personal needs and which of them will be administered by the trustee for the purpose of satisfying the bankruptcy creditors. In particular, with regard to income, if the debtor is deprived by the trustee of the enjoyment of his income to the extent to which he is entitled, the former acquires a claim against the latter, which he may in fact assert against him and the bankrupt's estate as a collective credit.
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