QUALIFICATION OF THIRD-PARTY PAYMENTS FOR THE DEBTOR DURING THE MORATORIUM PERIOD

The manager applied to the court for invalidation of the payment made by the debtor in favor of the entrepreneur (case no. A72-16788/22).

In rejecting the application, the court of first instance proceeded from the fact that the disputed payment is the fulfillment of an obligation by a third party for the debtor under his letter of order, the subject of which does not include a counter-provision by the recipient, and therefore it cannot be challenged.

At the same time, the court referred to the lack of evidence that the entrepreneur was aware of the debtor's insolvency and that the payment had been made as part of normal business activities.

The appeal was granted, based on the fact that the disputed payment falls under the period of suspicion.As the Court of Appeal noted, when challenging such a transaction, taking into account the period of its commission, it is not necessary to prove the counterparty's awareness of the debtor's insolvency and, consequently, his awareness of receiving an advantage in satisfaction greater than he would have received in bankruptcy proceedings.

Having established that on the date of the payment the debtor had unfulfilled obligations to other creditors, whose claims were subsequently included in the register of creditors' claims, as a result of which the defendant received preferential satisfaction of his claims against other creditors of the debtor, the court of appeal declared the payment invalid.

The cassation sent the dispute for reconsideration, pointing out that the debtor's obligations to the entrepreneur, which were paid in a disputed payment by a third party on behalf of the debtor, arose from the contract of carriage and the act of work performed after the date of the moratorium and during its validity. The bankruptcy case was initiated within three months of the end of the moratorium. Consequently, the debtor's current obligations were paid with the disputed payment.

Neither the court of first instance, which refused to satisfy the application, nor the court of appeal, which declared the transaction invalid, investigated or established the circumstances concerning the debtor's existence on the date of the disputed payment of other current obligations competing with the defendant's claim, insufficient funds to meet current payments that had priority over the cancelled claim, as well as the defendant's awareness of the repayment of the current debt mainly to creditors of the priority order of satisfaction who are already awaiting execution.