Scientia decoctionis: the creditor’s knoledge of the insolvency state of the debtor

written by Morena Pirollo

Scientia decoctionis” is a Latin expression that indicates the creditor’s knowledge of the insolvency state of the debtor: in order to revoke (as per art. 67, para 2 of Italian Bankruptcy Law) the payments made during the “suspicious semester” (this is to say the semester before the declaration in bankruptcy) the official receiver has to prove that the creditor who received payments by the debtor knew the insolvency state of the same at the time when the payments were made. According to the consolidated interpretation adopted by the Italian Supreme Court, scientia decoctionis, which is a subjective item, can be proved by the official receiver by way of presumptions, has to be evaluated on a case by case basis and should be serious, specific and univocal and the presumptions can be obtained also from press and mass media news, given that it cannot be aprioristically denied the relevance of journalistic news, if said news, due to the nature of the party involved, had an echo on national basis and refers to undisputable facts, such as actions taken by the Government, laws and official reports of surveillance bodies, showing the crisis conditions (see Court of Appeal of Rome, Section 1, decision no. 6647 dated October 29, 2014).

The evidence of scientia decoctionis can be obtained also from

From an economic point of view, the state of insolvency (also defined, in the technical sense of the term, “default”), represents the last step of a period of continuous crisis. An insolvent company should not have economic capacity or cash flow to make its payments. In other words, an insolvent company should not have the resources to satisfy the performances offered by its suppliers (of any kind).

 

 

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