Legal set-off and bankruptcy: the Court of Cassation clarifies with ruling no. 14330/2025
When a company approaches insolvency, every payment decision made by the administrator is scrutinized by the receiver and, if necessary, by the Public Prosecutor. The Court of Cassation, Criminal Section V, with ruling no. 14330 filed on April 11, 2025, provides a firm point: paying a debt already extinguished by legal set-off can constitute the crime of fraudulent bankruptcy of assets pursuant to art. 216, paragraph 1, of the bankruptcy law, with all the ensuing sanctionary consequences.
The Court's maxim
In matters of bankruptcy offenses, since legal set-off between two debts operates automatically provided they coexist and are certain, liquid, and due, the administrator who pays a debt that, due to the automatic operation of legal set-off, has become non-existent commits the crime of fraudulent bankruptcy of assets. (In application of this principle, the Court has annulled the appealed judgment with referral, as it is necessary to ascertain that, at the time of payment, all the legally required prerequisites for the automatic operation of the aforementioned cause of extinction of the obligation existed).
The Supreme Court refers to art. 1241 c.c. and following: when two parties are simultaneously debtors and creditors to each other for sums that are certain, liquid, and due, the respective debts are extinguished ipso iure. Paying anyway means diverting resources from the bankruptcy estate, with evident prejudice to the company's creditors.
The core of the decision
The Court annulled the ruling of the Court of Appeal of Turin of July 5, 2024, with referral, to verify, in fact, the existence of the objective prerequisites for set-off at the time of the payment ordered by G. P., former administrator of the bankrupt company. If these prerequisites existed, the payment would be considered a misappropriation and, therefore, fraudulent.
- Certainty: the credit must be undisputed;
- Liquidity: its amount must be determined;
- Due date: there must be no suspensive terms or conditions.
Only if the three requirements were met would the set-off have operated "automatically" pursuant to art. 1242 c.c., rendering the payment without cause.
Connections with previous case law
The principle is not isolated: rulings no. 37062/2022, 27446/2024, and 27132/2020 had already affirmed that the extinction of a debt, if ignored by an administrator in crisis, can have criminal relevance. The novelty of ruling 14330/2025 is the emphasis on the automaticity of set-off: a formal contractual act is not required, the existence of legal requirements is sufficient.
Operational implications for administrators and professionals
Those managing a company in difficulty must:
- punctually verify every debit and credit position with counterparties who are simultaneously debtors;
- document any impossibility of set-off (e.g., disputed or not due credit);
- promptly seek the opinion of legal counsel or the auditor, especially after the entry into force of the Code of Crisis (d.lgs. 14/2019) which emphasizes monitoring obligations.
Ignoring set-off, in fact, can not only lead to criminal liability but also exposes the administrator to civil liability actions pursuant to art. 2394 c.c. and 2497 c.c., with claims for damages by the receiver and creditors.
Conclusions
Ruling 14330/2025 reaffirms a basic concept: the protection of bankruptcy creditors also involves rigor in recognizing causes for automatic extinction of obligations. For the inattentive administrator, the line between legitimate management and fraudulent bankruptcy is thin and, as the Court of Cassation reminds us, is measured by adherence to the civil law principles of set-off.
