The Bankruptcy Administration not only has responsibility with the bankrupt and the bankruptcy creditors, but with any third party that may be damaged in the performance of their duties.
Sometimes we find companies in competition that continue with their activity, for which they require the contracting of services or products from suppliers.
One of the main responsibilities of the bankruptcy Administration is not to generate “a contest within the contest”, that is, to generate (or allow to generate) more debt than was found.
In case of non-payment of goods or services, the contest in force, to a supplier that is creditor against the mass (those who generate their credit after the declaration of contest), the responsibility of the Bankruptcy Administrator who allowed or carried out the hiring, and the exercise of the action of responsibility of the bankruptcy Administration foreseen in art. 36 of the Bankruptcy Law.
In this respect, the criteria established in the Supreme Court ruling no. 306/2015, of June 9, 2015, ratified by subsequent ones (sentences 305/2015, of June 10; 310/2015, of June 11; 152/2016, of March 11; 187/2016, of March 18; 1388/2017, of 6 of April), in the case of insufficient mass, which establishes that the order of priority established in art. 176 bis 2 of the Concursal law It will only be applicable in case the Bankruptcy Administration has previously communicated the insufficiency of mass. Otherwise, the credit expiration order will apply.
In the event that the creditor against the mass cannot collect, either by expiration order or by order of priority of payments, there will always be the option to explore the claim of non-contractual liability against the bankruptcy Administration, which should not have contracted with the creditor if I was not sure I could pay him.
FRANCISCO ORTIGOSA / JULIO RIBELLES
