The Rescission Of The Purchase Contract During The Bankruptcy Proceedings

In relation to the purchase contracts, in most occasions, the purchasers complete their obligations, whereas the developers do not proceed to hand over the property before the declaration of the bankruptcy proceeding or even during the course of the proceedings.

Before the declaration of the proceeding, theses contracts are not considered as rescinded contracts until the resolution has been settled by both parties or the resolution has been given by the judge.

 Once the proceeding has been declared, the Spanish law states that the proceeding will not influence the terms of the contract signed between the two parties. However If any party breached their obligations during the proceeding, the contract would be able to be resolved perfectly, without taking into consideration the decisions made from the administrator.

 The Spanish jurisprudence has been debating the following important point, they state that the purchase contract can be resolved according to the clauses, the Judges will be able to enforce the both parties to complete the contract, according to the interest of the bankruptcy proceeding.

 Therefore, if it had been lack of interest in relation to the bankruptcy proceeding, the contracts should be resolved. Once the contract has been resolved, the outstanding obligations set out in the contract will be extinguished and then it can be determined what the consequences are in relation to the breach of the pending obligations: Breaching the pending obligations before the bankruptcy proceeding, the credit will be determined as [credito concursal] or breaching the pending obligation after the proceeding, the credit will be determined as [credito contra la masa].

If the administrator declares the credit as [credito contra la masa], it will be much easier and much quicker to execute the credit, and then be able to recover the amount deposited.

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