Commentary on Judgment No. 11495 of 2024: Withdrawal and Revocation of Bankruptcy

The recent judgment No. 11495 of 2024, issued by the Court of Cassation, offers significant food for thought regarding the revocation of bankruptcy judgments and the role of withdrawal by the sole petitioning creditor. This judgment, in particular, emphasizes the importance of the manner in which withdrawal is expressed and its consequences on the creditor's standing.

The Legal Context of the Judgment

The Court analyzed a situation where the sole creditor requesting bankruptcy withdrew their petition, focusing on the need to distinguish between two types of withdrawal: that due to payment of the debt and that not accompanied by the extinction of the obligation. This aspect is crucial as it determines whether the withdrawal can affect the standing of the petitioning creditor.

Judgment declaring bankruptcy - Appeal proceedings - Withdrawal by the sole petitioning creditor - Consequences - Revocation of bankruptcy - Conditions - Factual circumstances. Regarding the revocation of a bankruptcy judgment, if the sole petitioning creditor withdraws the petition, a distinction must be made between withdrawal due to payment of the debt and withdrawal not accompanied by the extinction of the obligation: in the latter case, withdrawal, being an act of a purely procedural nature addressed, like the initial petition, to the judge, who must take it into account for the decision, is insufficient to revoke the bankruptcy judgment if it is produced only at the appeal stage; conversely, withdrawal resulting from the extinction of the obligation eliminates the standing of the petitioning creditor at the time of the bankruptcy declaration if payment occurred prior to it, with an instrument of certain date pursuant to art. 2704 of the Italian Civil Code. (In this case, the Supreme Court confirmed the appealed decision which had rejected the bankrupt's appeal, excluding that a settlement agreement containing a release of the debtor, lacking a certain date, produced before the appellate judge, could affect the standing of the petitioning creditor, thereby overturning the judgment opening the insolvency proceedings).

Practical Implications of the Judgment

The consequences of this judgment are significant for legal professionals and parties involved in bankruptcy proceedings. In particular, it is essential to consider:

• The nature of the withdrawal: it must be clearly documented and, in case of payment, must be evidenced by instruments of certain date;
• The creditor's standing: withdrawal not accompanied by debt extinction does not lead to the revocation of the bankruptcy judgment;
• The importance of documentation: it is essential to present concrete and valid evidence during appeal proceedings.

Conclusions

Judgment No. 11495 of 2024 represents an important clarification on insolvency proceedings and the revocation of bankruptcy. It highlights the need for proper management of creditor withdrawals, as well as the importance of adequately documenting one's position. This jurisprudential orientation will contribute to clarifying critical aspects of bankruptcy law, promoting greater certainty in proceedings and better protection of the rights of the parties involved.