The matter of bankruptcy revocatory action 

The matter of bankruptcy revocatory action 

According to the constant orientation of the jurisprudence of legitimacy, in the matter of bankruptcy revocatory action, the object of the test is not the mere “knowability”, according to the objective parameters recognizable by a subject of average diligence and shrewdness, but by a concrete psychological situation (“Actual knowledge”) of the state of insolvency (Court of Nassation, No. 10209/2009; No. 15939/2007; No. 14978/2007).

Precisely because of the evident difficulty of proving an inner state, the jurisprudence has pronounced itself with a constant orientation in the sense that recourse to presumptions is admissible, as per art. 2727 of the Italian Civil Code, in order to prove the scientia decoctionis, provided that their requirements of gravity, precision and concordance are such as to demonstrate by logical proof the actual knowledge of the failed state of failure of the entrepreneur.

It is therefore necessary that the state of insolvency be known, and that the satisfied creditor has had concrete knowledge of it.

Among the objectively relevant elements, to know the economic and patrimonial situation of an entrepreneur there is undoubtedly the budget, deputed to carry out an information function, containing a complete exposition of the facts inherent to the management of the company.

Subjective characters of the creditor

Subjective characters of the creditor

Furthermore, due consideration must be given to the creditor’s subjective characteristics : the banks, precisely because of the economic activity carried out, are equipped to carry out periodic surveys and checks on their customers, especially those entrusted, in order to verify their solvency. and / or patrimonial consistency, and act in self-defense, for example by revoking credit lines; for the service they carry out, they pay particular attention to the occurrence of signs of insolvency on the part of their current account holders, especially when they have significant amounts of credit. And it has been rightly observed that credit institutions must be given a possibility of information on the patrimonial situation of their debtors certainly superior to the common one.

This professionalism, however, does not exhaust the probative problem under discussion since it is not permissible, “to infer the conclusion that, only as a bank, this creditor has always and necessarily, actual and concrete knowledge of the insolvency of the debtor failed, thus excluding, illegitimately, any need for allegation, on the part of the curator, of further symptomatic elements of the concrete knowledge of the entrepreneur ‘s crisis “(among the other Nass. 4765/1998).