Older Forms

Bankruptcy Act 1988

Composition after Bankruptcy

Stay on realisation of estate.

(New)

38.—The Court may, on the application of a bankrupt, grant a stay on the realisation of his estate, for such time and under such conditions as it thinks fit, to enable him or any persons acting on his behalf to make an offer of composition to his creditors under section 39.

Offer

of composition.

(cf. 1857, ss. 149, 150 in pt.; 1872, s. 61)

39.—F25[(1) Where a stay on the realisation of the estate of the bankrupt has been granted under section 38 or where the Official Assignee has otherwise consented in writing to suspend the realisation of the bankrupt’s estate on such terms as he may specify in such consent, the bankrupt shall call a meeting of his creditors before the Court for the purpose of making an offer of composition to them. ]

(2) At least ten days before the meeting a notice of the meeting specifying the precise offer of composition to be made shall be inserted in Iris Oifigiúil and shall also be sent by post to each creditor at his last known address.

(3) If an offer of composition is made by or on behalf of the bankrupt and three-fifths in number and value of the creditors voting at the meeting, either in person or by an agent authorised in writing in that behalf, accept the offer or any modification of it, it shall be deemed to be accepted, and when approved by the Court shall be binding on all creditors of the bankrupt.

F25[(4) A creditor whose debt is less than €500 shall not be entitled to vote.]

(5) If for any reason the bankrupt has not filed a statement of his affairs as required by section 19 (c), he shall do so at or before the meeting.

(6) Debts may be proved at the meeting.

Annotations:

Amendments:

F25

Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 149, S.I. No. 462 of 2013.

Editorial Notes:

E14

Previous affecting provision: subs. (4) amended (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2; substituted as per F-note above.

Payment of composition.

(New)

40.—(1) Any composition shall be payable—

(a) in cash, within one month from the approval by the Court of the offer of composition or within such further time as the Court may allow, or

(b) by instalments, all of which shall be secured to the satisfaction of the creditors, or

(c) partly in cash and partly by instalments payable or secured as aforesaid.

(2) In no case shall any instalment be secured by a bill, note or other security signed by or enforceable against the bankrupt alone.

(3) The Court shall have discretion to refuse to approve of an offer payable wholly or partly by instalments if the final instalment is not payable within two years.

Discharge of adjudication order.

(New)

41.—The Court, on the application of the bankrupt or his personal representatives, shall, on the report of the Official Assignee and in the absence of fraud, discharge the adjudication order—

(a) in the case of a composition payable in cash, upon lodgment with the Official Assignee of the necessary amount to pay the composition, expenses, fees, costs, such further sums as the Court may direct and the preferential payments;

(b) in the case of a composition payable by instalments which are secured to the satisfaction of the creditors, upon lodgment with the Official Assignee of the completed bills, notes or other securities, the necessary amount to pay expenses, fees, costs, such further sums as the Court may direct and the preferential payments;

(c) in the case of a composition payable partly in cash and partly by instalments which are secured to the satisfaction of the creditors, upon lodgment with the Official Assignee of the completed bills, notes or other securities, the necessary amount to pay the cash composition, expenses, fees, costs, such further sums as the Court may direct and the preferential payments.

Bankrupt Dying after Adjudication

Bankrupt dying after adjudication.

(1857, s. 137)

42.—If a bankrupt dies the Court may proceed in the bankruptcy as if he were living.

Subsequent Bankruptcy

Subsequent bankruptcy.

(New)

43.—(1) Where a bankrupt is again adjudicated, all after-acquired property unclaimed by the Official Assignee at the date of the subsequent bankruptcy shall, if claimed by the Official Assignee, vest in him for the credit of the subsequent bankruptcy.

(2) Any after-acquired property or the proceeds thereof in the possession of the Official Assignee at the date of the subsequent bankruptcy shall be transferred by the Official Assignee (after deducting his costs and expenses) to the credit of the subsequent bankruptcy.

(3) Any surplus arising on the subsequent bankruptcy shall be transferred to the credit of the former bankruptcy.

Arrangements under Control of Court

F72[Prohibition on presentation of petition for arrangement under section 87

86A.— A person shall not present a petition to the Court under section 87 after the coming into operation of section 35 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013.]

Annotations:

Amendments:

F72

Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 35, S.I. No. 463 of 2013.

Petition for protection.

(1857, s. 343)

87.—(1) Any debtor unable to meet his engagements with his creditors and wishing to place the state of his affairs before them with a view to making a proposal for the composition of his debts, under the control of the Court, and to subject himself to the jurisdiction of the Court as provided by this Part may present a petition to the Court setting out the reason for his inability to pay his debts and requesting that his person and property may be protected until further order from any action or other process.

(2) The Court, on such petition, may by order grant such protection and renew the same from time to time as it thinks fit.

(3) The Court may refuse to grant protection to any debtor who is a member of a partnership, unless all the partners join in the petition.

(1872, s. 62)

(4) In this section “process” includes a bankruptcy summons and the registration of F73[a judgment mortgage under section 116 of the Land and Conveyancing Law Reform Act 2009].

(5) While an order for protection is in force a creditor shall not be entitled to register any F73[judgment mortgage] referred to in subsection (4) and any purported registration shall be of no effect.

(New)

(6) If a debtor, at the time of his petition, is in prison by virtue of section 6 of the Enforcement of Court Orders Act, 1940, the Court, on granting protection, may order his release.

Annotations:

Amendments:

F73

Substituted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.

Editorial Notes:

E26

Previous affecting provision: section repealed by Personal Insolvency Act 2012 (44/2012), s. 6 and sch. 1, not commenced; repealed (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 37, S.I. No. 463 of 2013.

Restriction on dealing with property.

(New)

88.—After an order for protection has been granted and so long as it is in force the arranging debtor shall not, without the prior sanction of the Court, pledge, part with or dispose of his property or any part thereof, save in the ordinary course of trade or business.

Annotations:

Editorial Notes:

E27

Effect of protection on execution orders.

(New)

89.—(1) An order for protection may be granted notwithstanding that there is an execution order in the hands of a sheriff or county registrar and the order shall operate to protect against execution save as provided by this section.

(2) The order for protection shall not affect an execution order on foot of which the sheriff or county registrar has made a seizure or gone into possession, and in such case the execution creditor may recover such amount of his debt as may be realised by the execution.

(3) In any case when the sheriff or county registrar has not made a seizure or gone into possession on foot of an execution order, the order for protection shall protect the debtor from further process in respect thereof and the execution creditor shall be bound by the arrangement.

Annotations:

Editorial Notes:

E28

Procedure on grant of protection.

(New)

90.—On the granting of an order for protection—

(a) the Court shall direct the arranging debtor to call a preliminary meeting of his creditors at which meeting the arranging debtor shall present a statement of his assets and liabilities and keep a minute of the proceedings;

(b) the Court shall direct a private sitting before the Court (to be held at a date specified in the order) for the purpose of considering his proposal;

(c) the arranging debtor shall deliver forthwith to the Official Assignee a memorandum containing:

(i) the date of the order for protection,

(ii) his name and address,

(iii) the amount of liabilities secured, partly secured and unsecured,

(iv) the amount of assets,

and shall deliver a duplicate of the said memorandum to the Central Office.

Annotations:

Editorial Notes:

E29

Filing of statements.

(1857, s. 345 in pt.)

91.—The arranging debtor shall file in the Official Assignee’s Office F74[no later than 7 days after the conclusion of the preliminary meeting] referred to in section 90—

(a) a statement of affairs in the prescribed form, which shall have endorsed thereon such proposal as he is able to make for the future payment or compromise of the debts or engagements set out therein, and

(b) a copy of the statement submitted at the preliminary meeting and of the minute of the proceedings with any proposal made thereat or at any adjournment thereof.

Annotations:

Amendments:

F74

Substituted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), s. 66, S.I. 274 of 2008.

Editorial Notes:

E30

Acceptance of proposal.

(1857, s. 346 in pt., s. 348)

92.—(1) (a) If, at the private sitting referred to in section 90 or any adjournment thereof, three-fifths in number and value of the creditors voting at such sitting either in person or by an agent authorised in writing in that behalf accept the proposal or any modification thereof, it shall be deemed to be accepted by the creditors, subject to the approval of the Court.

(1857, s. 347)

(b) If approved by the Court, the proposal or any modification thereof shall be binding on the arranging debtor and on all persons who were creditors at the date of the petition and who had notice of the sitting.

(2) A creditor whose debt is less than F75[€130] shall not be entitled to vote.

(3) The arranging debtor shall attend the sitting and the Court shall have power to examine him on oath or any witness produced by him or any creditor or person claiming to be a creditor.

(4) The Court may require any person so examined to sign a transcript of his evidence.

(1857, ss. 346, 347)

(5) Debts may be proved at the sitting.

Annotations:

Amendments:

F75

Substituted (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2.

Editorial Notes:

E31

Vesting in Official Assignee.

93.—(1) If the proposal provides for the vesting of all or part of the arranging debtor’s property in the Official Assignee either as security for an offer or for realisation and distribution, that property shall vest in the Official Assignee, if he consents, in accordance with the terms of the proposal on the approval of the proposal by the Court.

(2) Where all or part of the property is vested in the Official Assignee for realisation and distribution, the Official Assignee shall have for that purpose all such powers in relation to the property as he has in a bankruptcy matter. A proposal under which property is so vested is referred to in this Act as a “vesting arrangement”.

(New)

(3) Section 46 (which relates to a certificate of vesting) shall apply to property which vests in the Official Assignee under this section.

Annotations:

Editorial Notes:

E32

Distribution of property in vesting arrangement.

(New)

94.—(1) When the Official Assignee has sufficient funds to implement the terms of a vesting arrangement he shall present to the Court for approval a list of creditors admitted by him or by the Court, a copy of the relevant account of the arranging debtor in his books, particulars of expenses, fees, costs, preferential payments and dividend payable to creditors and his report on the realisation of the estate.

(2) The Court may make such order as it thinks fit for the distribution of the estate or any part thereof by payment of the expenses, fees, costs and preferential payments as well as the relevant dividend.

(3) The report and the account, together with the order of the Court, shall then be filed in the Central Office and shall be open to inspection by each creditor to whom notice of filing has been given in such form as may be prescribed. No fee shall be charged for inspecting the file.

(4) If for any reason the estate of the arranging debtor is not fully distributed by such order, second and subsequent distributions shall be made as soon as convenient after the realisation of the residual estate. The procedure shall be the same as for the first distribution.

(5) In any case where there are no funds, or in the opinion of the Official Assignee insufficient funds, available for distribution to the creditors, the Court may order the payment of expenses, fees and costs in that order so far as the funds extend. Where a balance remains, it shall be transferred to the account referred to in section 84(1).

Annotations:

Editorial Notes:

E33

Special private sitting.

(cf. 1857, ss. 351, 353 in pt.)

95.—(1) Where a proposal has been approved and the Court considers it necessary and desirable so to do, the Court may on the application of the arranging debtor cause a special private sitting to be held.

(2) At this sitting the majority in number and value of the creditors who have proved debts of not less than F76[€130] may confirm, alter or annul the proposal.

(3) If, however, one-third in number and value of such creditors do not attend the sitting, the decision at the sitting shall not be valid unless it is approved by the Court.

Annotations:

Amendments:

F76

Substituted (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2.

Editorial Notes:

E34

Carrying proposal into effect.

(New)

96.—A proposal shall be considered to be carried into effect—

(a) in the case of a vesting arrangement, on the approval thereof by the Court, and

(b) in any other case, at such time as may be prescribed.

Annotations:

Editorial Notes:

E35

Lodgment with Official Assignee.

(New)

97.—Where the proposal of an arranging debtor (not being a proposal providing for the vesting of all or part of his property in the Official Assignee for realisation and distribution) has been approved, the arranging debtor shall, within the prescribed period, lodge with the Official Assignee for purposes of distribution the necessary amount to pay expenses, fees, costs and the preferential payments, together with the cash, bills or promissory notes (if any) provided for in the proposal.

Annotations:

Editorial Notes:

E36

Certificate of arranging debtor.

(New: cf. 1872, s. 64 in pt.)

98.—Where the proposal of the arranging debtor has been carried into effect, the Court shall, on the report of the Official Assignee and in the absence of fraud, grant to the arranging debtor a certificate under the seal of the Court, and the certificate shall operate as a discharge to the arranging debtor from the claims of creditors who received notice of the arrangement.

Annotations:

Editorial Notes:

E37

Publication in relation to arrangements.

(New)

99.—(1) No publication of the affairs of the petitioner or of the proceedings in an arrangement matter shall take place without the sanction of the Court other than the publication in a bona fide trade journal of the particulars set out in the documents filed in the Central Office under section 90.

(2) Any person who contravenes subsection (1) shall be guilty of an offence.

Annotations:

Editorial Notes:

E38

Taking possession of property by Official Assignee.

(cf. 1857, s. 344 in pt.)

100.—The Court may, on the application of the Official Assignee or any creditor, at any time after an order for protection is made (and on sufficient cause shown) direct that the property of the arranging debtor or any part thereof shall be possessed and received by the Official Assignee.

Annotations:

Editorial Notes:

E39

Discharge of protection order.

(New)

101.—The Court may, at any time after the private sitting referred to in section 90, order that the order for protection be discharged on application to that effect being made by the arranging debtor with the concurrence of every creditor who had notice of the private sitting and whose debt is not less than F77[€130].

Annotations:

Amendments:

F77

Substituted (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2.

Editorial Notes:

E40

Surplus.

(cf. 1872, s. 65 in pt.)

102.—(1) Whenever it appears to the Court that there remains vested in or in the possession or control of the Official Assignee any property of an arranging debtor who has obtained the certificate mentioned in section 98 the Court shall order that it be revested in or returned to, as the case may be, the debtor, his personal representatives or assigns.

(2) The order shall for all purposes be deemed to be a conveyance, assignment or transfer of property and, where appropriate, may be registered accordingly.

Annotations:

Editorial Notes:

E41

Goods obtained on credit.

(New)

103.—If within fourteen days before an order for protection is made the debtor obtains goods on credit knowing at the time that he will be unable to pay for them the Court, on the application of the creditor, may, if it thinks fit, direct either the return of the goods or payment for them in full.

Annotations:

Editorial Notes:

E42

Private sitting for enquiry.

(1857, s. 353 in pt.)

104.—The Court may at any time in an arrangement matter, on the application of the Official Assignee or any person having an interest, appoint a private sitting for enquiry and summon before it the arranging debtor or any other person and examine him upon any matter which the Court considers relevant to the arrangement.

Annotations:

Editorial Notes:

E43

Adjudication of arranging debtor.

(New: cf. 1857, s. 353 in pt.)

105.—(1) The Court may, if it thinks fit, adjudicate the debtor bankrupt if—

(a) he does not, in the prescribed manner and within the time specified in section 91, file the documents required by that section, or

(b) at the private sitting referred to in section 90 or any adjournment thereof his proposal or any modification thereof is not accepted or approved, or

(c) his proposal is annulled under section 95 (2), or

(d) at any time after the presentation of his petition for arrangement it is shown that the affidavit filed with the petition is wilfully untrue or that he has not made a full disclosure of his property, assets and liabilities, or

(e) it appears that he does not wish to make a bona fide arrangement with all his creditors, or

(f) his proposal is not reasonable and proper to be executed under the direction of the Court, or

(g) he does not duly attend the private sitting or any adjournment thereof, or

(h) he fails to obey any order of the Court affecting him which may be made in the arrangement matter, or

(i) he is party to any corrupt agreement with his creditors to secure the acceptance of his proposal.

F78[(2) On an adjudication under subsection (1) the Court shall proceed as in bankruptcy and cause notice of the adjudication to be given forthwith in the prescribed manner in the Iris Oifigiúil, and—

(a) in at least one daily newspaper circulating in the State, or

(b) by the publication of the notice on the website of the Insolvency Service of Ireland,

and the petitioner shall be subject to the jurisdiction of the Court in the same manner as any other bankrupt, and any proposal which may have been made or accepted or approved shall be void.]

Annotations:

Amendments:

F78

Substituted (24.12.2013) by Companies (Miscellaneous Provisions) Act 2013 (46/2013), s. 10(b), commenced as per s. 11(4).

Editorial Notes:

E44

Partners obtaining protection of the Court.

(New)

106.—(1) Where two or more members of a partnership obtain the protection of the Court and make proposals to their creditors for the payment or compromise of their joint and several liabilities, the Court shall adjudicate all the members bankrupt if any of the proposals are not accepted.

(2) On an adjudication under subsection (1) the Court shall proceed as in bankruptcy and cause notice of the adjudication to be given forthwith in the prescribed manner in Iris Oifigiúil and in at least one daily newspaper, and the petitioner shall be subject to the jurisdiction of the Court in the same manner as any other bankrupt, and any proposal which may have been made or accepted or approved shall be void.

Annotations:

Editorial Notes:

E45

Summoning witnesses.

(1857, s. 353 in pt.)

107.—The procedure for summoning witnesses in an arrangement matter shall be the same as in bankruptcy and the Court shall have similar powers of enforcing their attendance.

Annotations:

Editorial Notes:

E46

Registration of arrangements.

(New: cf. 1887, c. 57, s. 7; 1890, c. 24, s. 2)

108.—(1) A register shall be maintained in the Central Office for the filing of memoranda delivered to that office under section 90.

(2) Rules of court may provide for matters ancillary to the keeping of the register.

Annotations:

Editorial Notes:

E47

Exclusion of Deeds of Arrangement Act, 1887.

(New)

109.—The Deeds of Arrangement Act, 1887, shall not apply to an arrangement under this Part.

Annotations:

Editorial Notes:

E48

Older Forms

Bankruptcy Act 1988

Composition after Bankruptcy

Stay on realisation of estate.

Offer

of composition.

Payment of composition.

Discharge of adjudication order.

Bankrupt Dying after Adjudication

Subsequent bankruptcy.

Arrangements under Control of Court

Petition for protection.

Restriction on dealing with property.

Effect of protection on execution orders.

Procedure on grant of protection.

Filing of statements.

Acceptance of proposal.

Vesting in Official Assignee.

Distribution of property in vesting arrangement.

Special private sitting.

Carrying proposal into effect.

Lodgment with Official Assignee.

Certificate of arranging debtor.

Publication in relation to arrangements.

Taking possession of property by Official Assignee.

Discharge of protection order.

Surplus.

Goods obtained on credit.

Private sitting for enquiry.

Adjudication of arranging debtor.

Partners obtaining protection of the Court.

Summoning witnesses.

Registration of arrangements.

Exclusion of Deeds of Arrangement Act, 1887.

Legal Guide has a Better Version of this Article

Legal Blog Covers Tax and Regulation

Older Forms

Bankruptcy Act 1988

Composition after Bankruptcy

Stay on realisation of estate.

Offer

of composition.

Payment of composition.

Discharge of adjudication order.

Bankrupt Dying after Adjudication

Subsequent bankruptcy.

Arrangements under Control of Court

Petition for protection.

Restriction on dealing with property.

Effect of protection on execution orders.

Procedure on grant of protection.

Filing of statements.

Acceptance of proposal.

Vesting in Official Assignee.

Distribution of property in vesting arrangement.

Special private sitting.

Carrying proposal into effect.

Lodgment with Official Assignee.

Certificate of arranging debtor.

Publication in relation to arrangements.

Taking possession of property by Official Assignee.

Discharge of protection order.

Surplus.

Goods obtained on credit.

Private sitting for enquiry.

Adjudication of arranging debtor.

Partners obtaining protection of the Court.

Summoning witnesses.

Registration of arrangements.

Exclusion of Deeds of Arrangement Act, 1887.

Legal Guide has a Better Version of this Article

Legal Blog Covers Tax and Regulation

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