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16/09/2024
Monday
THIS DAY IN HISTORY:
16 September 
1970 "Black Wednesday" of the British pound sterling.
1970 The Montreal Treaty for the Protection of the Earth's Ozone Layer was signed.
1970 Mexico declared independence from Spain.
16 September
1970 "Black Wednesday" of the British pound sterling.
1970 The Montreal Treaty for the Protection of the Earth's Ozone Layer was signed.
1970 Mexico declared independence from Spain.
IF SOME OF THE TRANSACTIONS RELATE TO CURRENT PAYMENTS, THEY MUST BE CHALLENGED DIFFERENTLY
The manager appealed to the court with an application to challenge the agreement concluded between the debtor and the company for accounting and money transfers (case no. A40-32328/20).
The courts of two instances partially satisfied the application, noting that the defendant submitted primary evidence to the case file confirming the reality of the services provided under the contract, and therefore concluded that there were no grounds for recognizing the contract as an imaginary transaction, and payments under it were made with the purpose of causing harm or abuse of law.
The cassation annulled the judicial acts in part and sent the dispute for reconsideration, guided by the following:
In this case, the judicial act of the first instance lacks established factual circumstances and any conclusions regarding the invalidity of the preferred satisfaction of the additional agreement to the contract, the invalidation of which is indicated in the operative part of the definition.
By invalidating payments as the preferred satisfaction of the defendant's registry claims against the debtor, the courts left without checking the defendant's objection that part of the disputed payments was made by the debtor for services under the contract rendered after the initiation of bankruptcy proceedings, that is, current claims.
The courts did not investigate and did not establish whether the debtor made payments for services rendered by the defendant after the initiation of bankruptcy proceedings as part of the disputed payments. Without properly checking the defendant's arguments, the courts did not apply the provisions concerning the establishment of the preference for meeting current requirements.
Rejecting the defendant's objections about the need to apply the provisions on ordinary business activities to disputed payments, the courts pointed out only that the accounting services provided by the defendant are not ordinary activities for the parties, which contradicts the conclusions of the courts about the actual provision of accounting services by the defendant under the contract, about the main type of activity of the defendant and about the need for such services to the debtor.
The courts of two instances partially satisfied the application, noting that the defendant submitted primary evidence to the case file confirming the reality of the services provided under the contract, and therefore concluded that there were no grounds for recognizing the contract as an imaginary transaction, and payments under it were made with the purpose of causing harm or abuse of law.
The cassation annulled the judicial acts in part and sent the dispute for reconsideration, guided by the following:
In this case, the judicial act of the first instance lacks established factual circumstances and any conclusions regarding the invalidity of the preferred satisfaction of the additional agreement to the contract, the invalidation of which is indicated in the operative part of the definition.
By invalidating payments as the preferred satisfaction of the defendant's registry claims against the debtor, the courts left without checking the defendant's objection that part of the disputed payments was made by the debtor for services under the contract rendered after the initiation of bankruptcy proceedings, that is, current claims.
The courts did not investigate and did not establish whether the debtor made payments for services rendered by the defendant after the initiation of bankruptcy proceedings as part of the disputed payments. Without properly checking the defendant's arguments, the courts did not apply the provisions concerning the establishment of the preference for meeting current requirements.
Rejecting the defendant's objections about the need to apply the provisions on ordinary business activities to disputed payments, the courts pointed out only that the accounting services provided by the defendant are not ordinary activities for the parties, which contradicts the conclusions of the courts about the actual provision of accounting services by the defendant under the contract, about the main type of activity of the defendant and about the need for such services to the debtor.
21.08.2024
