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Article 67 of the Italian Insolvency Act provides that, if bankruptcy occurs, any detrimental act, such as payments and guarantees, made by the debtor in the last period before bankruptcy (six months or one year, depending on the act at issue), may be set aside in the interest of the creditors.

The first paragraph of the aforementioned article lays down a presumption of awareness of the insolvency. This means that, in order to avoid an action to set aside an act in fraud of the creditors, one must give evidence that they were not aware of the insolvency of the debtor at the time that detrimental act was made.

With regard to this, with judgment no. 23424 of 17th November 2016, the Court of Cassation has stated that it is not sufficient to prove the absence of circumstances from which insolvency may be inferred. Instead, according to the Court, it is necessary a positive demonstration that, at the time the act at issue was executed, there were elements from which a person of ordinary diligence would have inferred that the entrepreneur was solvent.

Therefore, before receiving payments or obtaining guarantees, it is important to carry out a monitoring of the economic and financial conditions of one’s client, so as to be sure about their solvency.