La rescisión de las garantías

Supervised by:
  1. Sonia Rodríguez Sánchez Director
  2. Francisco José León Sanz Director

Defence university: Universidad de Huelva

Fecha de defensa: 10 December 2018

  1. Guillermo J. Jiménez Sánchez Chair
  2. Jesús Quijano González Secretary
  3. Giuseppe Ferri jr. Committee member

Type: Thesis


The companies have his its source of credit in the objective-patrimonial clcments that integrate the heritage of the managerial organization. Nonnally, a Iack of coordination takes place betwcen the vohnne and the ammrnt of the activity that they develop and tite credit nceds úiat he(she) carries and the wealth assets that assure the fulfillment of the obligations. The credit needs for Úle development of the mmiagerial aclivity ordinarily are superior to Úle patrimonial guarantees úiat cm1 be used for Úle coverage ofthe fulfillment ofthe collllnitments Urnt are assumed. In the moments in which a company is going through a situation of cconomic difficullies, there is usually an increase in credit, coupled with an unjustified or abusíve dermmd for guarantees. Likewise, the caunterparts of the entrepreneurs usually demand the granting of guarantees to maintain the relationships tlrnt are necessary for the continuity of the business acthity. For all these re,isons, when Uie bankmptcy is declared, ordinarily, the patrimonial elements of the assct free of charges may have been c-0nsiderably reduced and thc insufficient equity for the colleclive satisfaction of the unsecurcd crcdilors rnay have increased. In consideration of the problems that arise in úiis type of situation, in the traditional Bmlkruptcy Law, a series of cases were typified to facilítate Úle rescission of ú1c guarm1tees constituted in Úle period prior to the declaration of bankmptcy. With fuis kind of me,isures, it was intendcd to nullify thc grm1ting of füose guarantees that had been conslituted in an ahusive rnmmer. However, this mean! a restriction to access crcdit and to maintain. the relalionships, which in.creased the difficulties to contim,e the actiYity and avoid bankrnplcy. The rescission actions constitute a measure that poses an inescapable tension with the principie of legal security. Hence, the need for tite factual assumptions Urnt detennine Uiat rescission can procced, must be fully justificd and clearly defmed, from tite perspeclive ofthe purposes ofthc ordination of the bankcruptcy. In this regard, in Úle treatrnent of úie rescission of the guarantees created before the declaralion of insolvcncy and, in. general, of the rcfinancing and of the agreements rc,iched in situations of ecouonúc difficultics, it is necessary to achicve a difficult balance to facilitate the realization of !hose acts that are suitable to make possible the contirnúty of the cornpany and, at tite sarne time, so úrnt the abush•e acts and !hose tliat supposc an unjustificd decrease of füe assets of the insolvent one can be"ithout. The approval of the Bankruptcy Law in 2003 supposed to bring to a successful conclusion the proccss of reform of !lle insolvency regulalions, which mean! an irnprovement and the improvement, to a large eJ>ient, of ¡he centenary Bankruptcy L,iw in force in the Commercial Code. One of the most importan modifications introduccd by the Bankruptcy Law is úie rcpeal of the retrpactive aclion regirne and tite special rescission aclions provided for in articles 878 to 882 of the Commercial Code. Toe feedback determinet, in aocordance with the wording, tlle mrllity of ali those acts performed from the date to which the effects of the declaration of bankruptcy were retroactive. In turn, the rigor in the confíguration of the feedback prevented or rendered ineffective the application of special rescission actions. The Spanish Bankruptcy Law opts for the rescission techniqne as an instrument of reintegration. The normative configuration of the rescission action aims to objectify as muchas possible the exercise of the action, ami, for this pul]lOse, it is reqiúred as thc only assumptions that the act is bannful and that it is carried out in the two years prior to the declaration of insolvency. In thls scnse, it does not take into account the good faith of the counterparty or the insolvency situation of the debtor at the time of performing the act. 1n temJS of effects, the legislator foresees the consequences of temúnation only in respect of contracts, but not in respect of unilateral acts, sucb as pa)mcnts, nor does it give a specifíc treatment to accessory relationships sucb as tbe constitution of gnarnntees. Tbe qualification of tbe credit tbat arises in favor of tbe counterparty is qualifíed in any case as a credit against the estate, unless bad faith is shown, in wbicb c,ise the credit is considered as subordinate. In the c,ise of payments and guarantees, the credit wbose pa)menl is ternúnated or with respect to which the guarantee is tenninated, has the c-0rresponding qualifíc,ition in the tender, since this credit, as such, is not affected by the rescission. Tbe indetemúnacy aud misleading nonnative delimitation of tbe concept of harm, thc irrelevance of the subjective element of good faith and the inappropriate treatrnent of tbe effects show that the complete break desired has not occurred with respect to the previous regirne of retroaction of the Commercial Code in consideration of the rescission nature of the reintegration actions. In this sense, the influence or linkage of the Commercial Code in the configuration of the rescission action in the Baukruptcy Law is greater thao it might seern. This poses a structural problem and also a functional problern. A structural problern because the configuralion of the rescission actiou has uot been carried out according to the most appropriate techrucal structure of the rescission from a theorelic,il,juridical point of view. Tlús supposes, in tum, a fuuctional problem because, the fact that the action is not correctly configured, hinders its applicatiou in relatiou to the economic operations of exchange, since the terrnination deternúnes the obligation to satisfy the credit against the counterparty. Innnediate forrn as debt of the 111ass. These deficiencies have a particular impact 011 guarantees and payments. The mamier in which the rescission action is configured in Spanish Law leads to the possibility that the exercise of the same he raised in relation to those acts of dispositiou that consist in rnaking payments and granting guarantees, since in these cases, aut increase in the active mass due to reintegration occurs as a cousequence of the terminatiou. The configuration of the rescissiou action affects in a particularly relevan! way the refiuancing, since thls kind of operations nornrnlly involve tbe patment of uunrntured obligations and the grauting of new guarantees On the other hand, the regulation of the rescission action, like the Bankruptcy Law, is airned at achleving the traditional bankruptcy law purposes, that is, the liquidation of the bankrnpt's assets for the collective satisfactiou of the creditors. The reference to tbc continuity of tlte debtor's activity that is made in the Staternent of Motives of tbe Law does not rnaterialize effectively in the regime that is established. As regards rescission, no exceptio11S to termination were established to facilitate agreernents that may favor the solution of economic difficulties wheu a c-0rnpany is not yet insolvent. Following the ccouomic crisis that began in 2008, the deficiencies uoted in the treatrnent of reintegration became apparent. On the one hand, it was an obstacle to carrying out refinancing to make possible the continuity of the solvent but excessively indebted compmúes and, on the other hand, once the bm1kruptcy was declared, the rescissiou actiou was uot very effective due to the COIJSideratiou of the credit of the coU11terparty as debt of the mass. The severity and systemic irnportmicc of the crisis, especially in the financial sector, have led to the adoption of urgen! measures aud the establishment of a regulation in which refínaucing agreements that comply withthe required reqnirements cau uot be rescinded. The problems indicated in rclation to the Bankrnptcy Law and its successh-e reforms juslify the study of comparative law systerns. Ou the one hand, the Italian Law is analyzed, wlúch is the one that has greater similarities with Sparush Law, wbich c-011tains a contrasted rescission regime and which, in turn, presents a problem tlrnt to a certain extent resembles that found in our order to tl1e exteut that the rescission action has been configured from thc perspectirn of tl1e traditional purposes of bankn,ptcy law. For this rcason, the study of Italian Law is carried out in a very detailed way to analyze the similarities and the contras! wiU. Spanish Law. On the other hand, a study of NorUi American Law is made. The interest of this arder consists essentially in the fact that the rescission treatrnent is not done from the traditional bankmptcy law purposes, bnt from tbe perspectiye of U.e restructuring of tbe company as a way of resolving situations of econornic difficulties and the assumptions of insolvcncy. Once comparative law is exposed, Spanish law is analyzed in detail. In thefust place, the current regime is compared with the onc envisaged in the Commercial Code, in order to assess to what e"ient it has influenced the configuration of the rescission action in the Bankn1ptcy Law. Nex! wc proceed to the study of rcfimmeiI1g agreements. The regulations introdl!ced in thesl!ccessh'e amemlmen!s to the Bankruptcy Law and its impact on the treatment of the rescission of tbe guarantees are analyzed, ali from the evolution e,qx:rienced sine-e 2009 and, in 1nm, in contrast with Italian Law , by its similarities with the Spanish Law, and with the North American Law, in which thc refinanciI1g is regulated in the framework of a bankruptcy procccding aimed at corporate rcstructuring. Subsequently, the issue of the conte"iuality of the guarantees and thcir oncrous or gratuitous naturc is analyzed aud, in particular, tlte rescission of tite guarantees granted between companies belonging to the smne group is studied in de!ail. Also in this part, the contras!wilh ltalian law is of special interest. Finally, specific cases of rcscission llave been addressed, such as thc rcscission of tlte guarantees granted to secure the curren! acmunt and credit opening contract or tite specialty of articlc 10 LMH. Thc last part is devoted to the study of tite effects of the rcscission, in considcration, naturally, to the cases in which the termination is aimed at the constitution of guarm1tees. 11ie methodological approach of this PhD rcsponds to a traditional approach in legal thinking that aims, on the one hand, to facilitate the interprctation of positive law and, at thc same time, secks to understand and make a critique of the current regíme from the comparative e"-¡,eríence and tite general theory of Law. This methodological approach allows us to offer mi interpretative solution lo ccrtain íssues raised by the curren! regime of bankn1ptcy rescission actions and, above all, tries to understand what are the reasons for tensions a..rising in bmlkruptcy law in the regulation of reintegration and its incidence with respect to guarm1tecs. At thc same time, the relevance of the study of tite rescissíon from tltis perspective transcends tite merely theoretical or dogmatic issues and contributes to show how the deficiencies in tite way in which the rescission aetion is configured structurally have transccndence from the point ofview ofpolitics legal and has a significan! incidence in consideration oftlte pmposes lo be achieved.