EQUIVALENCE OF COUNTER-EXECUTION AS A PROTECTION AGAINST THE INVALIDITY OF THE TRANSACTION

The manager appealed to the entrepreneur to declare the transaction invalid (case no. A73-15474/23).

The courts of two instances granted the application and proceeded from the fact that: 

• the defendant has not proven the fact of the acquisition of the disputed property in unsatisfactory condition, the repair of the front loader after its acquisition has not been documented, while the terms of the contract stipulate that the general condition of the vehicle is satisfactory.; 

• the contested transaction was completed in the absence of a counter-provision by the defendant, which caused significant harm to the debtor's creditors.; 

• by itself, the defendant's commission of a transaction at a significantly reduced price indicates his awareness of the purpose of causing harm to the debtor and his creditors.; 

• the transaction was completed at a time when the debtor already met the criteria of insolvency. 

The cassation refused to satisfy the claims, since the analysis of the debtor's financial condition implies the existence of a positive balance at the time of the transaction. It was also established that there were no delays in obligations to creditors as of the date of the disputed transaction. 

The conclusion of the court of first instance on the debtor's insolvency was found to be erroneous. There is no evidence of kinship, friendship, or partnership between the debtor and the defendant. 

Specifying a price significantly lower than the market price in the contract is not typical for interested parties. The arguments given by the manager are not sufficient to impose on the defendant the burden of refuting the presumptions. 

Making a transaction before establishing a relationship with creditors refutes the focus on violating their rights. Thus, the bankruptcy trustee has not proved the totality of circumstances qualifying the transaction as invalid. 

 

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