The Court of Rimini (ruling no. 872/2012) rejected the Longoni Sport SpA in “extraordinary administration” (Giacomelli Group) claim to recover more than € 3.3 million paid to an international network currently comprising 250 sports shops in Italy, assisted by Scarpellini Naj-Oleari & Partners.
The Court held that the trustee of the bankruptcy did not provide any evidence to demonstrate the condition of scientia decotionis, requested by art. 67, paragraph 2, Italian Bankruptcy Law.
This article provides that the trustee of the bankruptcy may file proceedings to recover the payments of due debts made by the debtor during a 6 months period prior to the bankruptcy, if he is able to give evidence that the creditor was aware of the debtor’s state of insolvency. Italian Courts hold that the awareness of the insolvency of the debtor should be real (not simply possible).
Normally, the evidence of this state is achieved by presumptions, namely a series of circumstantial evidences that can univocally suggest that a creditor of ordinary care and prudence was actually aware of the state of insolvency of the debtor.
That circumstantial evidences should always be held in relation to economic, social and organizing conditions of the creditor and taking into account its category.
There are many circumstantial evidence commonly used in case law to prove the scientia decotionis. In this case, the trustee of bankruptcy submitted to the Court the company’s financial statements, payment reminders and protests. Furthermore, he provided the Court with articles from various newspapers reporting the general concern of the market in relation to the critical economic situation of the Giacomelli Group after the acquisition of Longoni SpA.
However, the Court pointed out that the press also reported contradictory elements that would allow the distributor to continue to rely on financial capability of the listed Group, such as prospects for growth abroad and strategies to increase revenue.
According to the Court, reminders and payment plans in themselves are considered not necessary to imply the awareness of insolvency and could well be attributed to a temporary liquidity crisis that can be overcome. Even the balance sheets data were deemed unfit to demonstrate the creditor’s scientia decotionis, as the latter is not a particularly qualified creditor (bank, insurance, etc.). According to case-law, proof of the subjective element can be actually derived from the financial statements of the debtor if the creditor, considering his profession and experience in this area, is qualified to draw from them the state of insolvency of the debtor, clearly if that state appears in the statements.
