In 2012, for the first time, the Italian legislator introduced in the Italian bankruptcy code a new article (169 bis) with whom has been expressly regulated the destiny of the existing contracts at the opening of a composition with creditors procedure. Now, the debtor has the opportunity to ask for an authorization in order to end those contracts that are still in progress at the moment of the presentation of the petition by the debtor. Otherwise the debtor can obtain an authorization from the court to suspend the contracts in progress for at most sixty days (extensible for one time only for other sixty days). In case of end or suspension of those contracts, the other party of the same contracts has the right to receive a compensation. However this compensation has to be paid as a credit made before the opening of the composition with creditors procedure. The ambiguous formulation of the article caused several interpretative problems that the first implementation of the new law inevitably pointed out. This work are especially analyzes not only the problems connected with the identification of the application area of the new discipline, the exact juridical qualification of the terms used by the legislator, their effects and their effective date, but also the problems connected with the exact identification of the limits within which the petition can be presented by the debtor. In addition, it has been evaluated if it is necessary to summon the other party of the contract in order to allow him to explain his reasons; and above if it is possible to apply this norm even in that specific kind of composition called “white composition”. The answers given to these questions were different and very miscellaneous. Some of them have been adopted by the d.l. 83/2015, which tried to solve (not all but) a part of those problems. Special attention has been also paid to some particular kind of contracts (especially financial) mostly used in practice and whose features create many interpretative difficulties related to the right application of the new art. 169 bis l.f.
|Data di pubblicazione:||16-set-2016|
|Titolo:||Contratti pendenti e concordato preventivo|
|Settore Scientifico Disciplinare:||IUS/01 - DIRITTO PRIVATO|
|Corso di dottorato:||SCUOLA DI DOTTORATO IN SCIENZE GIURIDICHE - 71R|
|Citazione:||(2016). Contratti pendenti e concordato preventivo. (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2016).|
|Parole Chiave (Italiano):||Contratti pendenti, Concordato preventivo, Scioglimento, Sospensione|
|Appare nelle tipologie:||07 - Tesi di dottorato Bicocca post 2009|