POLAND Law and Practice Contributed by: Karol Tatara, Paweł Kuglarz, Anna Czarnota and Mateusz Kaliński, Tatara & Partners Restructuring & Insolvency Law Firm
However, when the proceedings do not satisfy the cost of the proceedings (and creditors have not made advance payments for these), the court may decide to discontinue such proceedings. The sale of assets is managed by the trustee, who should report the current status to the judge-com - missioner. The trustee should also have the consent of the credi - tors’ committee for: • the trustee continuing to run the enterprise, if it is to be continued for more than three months from the date of declaration of bankruptcy; • forgoing the sale of the enterprise as a whole; • the unrestricted sale of property included in the bankruptcy estate; • taking out loans or credits, and encumbering the bankrupt’s assets with limited rights in rem; and • recognising, waiving or making a settlement in respect of disputed claims and submitting a dis - pute to a conciliatory court for determination. No consent of the creditors’ committee is required for the sale of movable property where the estimated value, as shown in the inventory stock count, of all movable properties included in the bankruptcy estate is equal to or less than the equivalent of PLN50,000, as well as the sale of receivable debts and other rights within such value. A bankruptcy sale enjoys an execution-sale effect, which means that the purchaser acquires assets free of claims and liabilities asserted against the debtor. Netting Where a framework contract to which the bankrupt is a party stipulates that individual detailed contracts in financial futures, financial instrument lending or repurchase of financial instruments (“netting”) are to be entered into in fulfilment of the framework contract and that the termination of the framework contract has the effect of causing the termination of all the detailed contracts entered into in fulfilment thereof, then: • receivable debts arising under individual detailed contracts entered into in fulfilment of the frame -
work contract must not be included in an arrange - ment concluded in bankruptcy proceedings; and • the trustee is not vested with the powers of rescis - sion of the framework contract. Set-Off With reference to set-offs, setting off of a receivable debt of the bankrupt against a receivable debt of a creditor is permitted where both receivable debts exist - ed on the date of the declaration of bankruptcy, even if the maturity date of one of them has not yet arrived. The bankrupt’s receivable debt is presented for set- off in the full amount, and that of the creditor only in an amount equal to the principal receivable debt and interest accrued until the date of the declaration of bankruptcy. Where an interest-free debt of the bankrupt is not due on the date of the declaration of bankruptcy, an amount taken into account for set-off purposes is that of the amount receivable less statutory interest, which in no case may exceed 6%, from the date of the dec - laration of bankruptcy to the maturity date and for no more than a period of two years. No set-off is permissible where a debtor of the bank - rupt acquired the receivable debt by means of assign - ment or endorsement subsequent to the declaration of bankruptcy, or acquired it during the last year before the date of the declaration of bankruptcy while being aware of the existence of a ground for the declaration of bankruptcy. However, as an exception, set-off is permitted where the acquirer has become a creditor of the bankrupt through repaying the bankrupt’s debt for which the acquirer was liable, either personally or with specific property items, and if at the time of assuming liability for the bankrupt’s debt, the acquirer was not aware of the existence of grounds for the declaration of bankruptcy. A set-off is permitted at all times where the assumption of liability occurred at least one year before the declaration of bankruptcy. Additionally, no set-off is permitted where the creditor has become a debtor of the bankrupt after the date of the declaration of bankruptcy.
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