News
The avoidance action against a failed company is inadmissible
- 02/01/2019
The case derives from the decision of the Court of First Instance which upheld an avoidance request pursuant to art. 66 L.F., against a failed “coop a r.l.”, by reference to an holding transfer settled by the companies when both of them were “in bonis”.
The Court of Cassation, SS.UU., with the sentence no. 30416 of 23.11.2018, established that an avoidance action against a failed company is not admissible, because of the principle of crystallization of the liabilities, and the constitutive nature of the action itself.
In fact, the assets of the bankruptcy are insensitive to the claims that have been implemented after the declaration of bankruptcy, and, in the case of avoidance, the legal effect favorable to the plaintiff is produced only after the acceptance sentence.
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