Creditors who are certain that their debtor can no longer meet his commitments may file a bankruptcy petition against the debtor, regardless of the type of debt receivable and whether or not it is due for payment.
Any creditor with unpaid receivable debts can file a bankruptcy petition against a trader or a commercial company if he is certain that:
- the debtor can no longer meet his commitments;
- the debtor has lost creditworthiness.
Occasional financial difficulties on the part of the debtor do not constitute the cessation of payments necessary to file a bankruptcy petition.
To be declared bankrupt, the debtor must:
- be a trader, i.e. any natural or legal person who carries out commercial acts as his profession. This is recognised de facto for any commercial company;
- have ceased payments, i.e. the debtor is unable or refuses to meet his commitments or to pay his debts. The debt must be certain, of a fixed amount and due;
- and have lost creditworthiness. This may result from an inability to obtain fresh funds in order to pay his debts and bring the cessation of payments to an end, or from the refusal of the creditors to grant an extension to the payment period.
In order to file an allowable bankruptcy petition, the creditor must:
- provide proof of his creditor status: his receivable debt must be certain, of a fixed amount and due;
- and act in good faith: A bankruptcy petition must not be used as a means of intimidation against a debtor as such a petition is likely to harm the reputation of the debtor. Therefore a creditor may not use a bankruptcy petition for the sole purpose of recovering his debt as the bankruptcy procedure does not result in payment of the debt.
Any creditor that wrongly files a bankruptcy petition may be ordered to pay damages for bringing a case improperly. However, during the legal proceedings, the creditor may request suspension of the bankruptcy petition if he becomes aware that the conditions required to declare bankruptcy are not satisfied.
Filing a bankruptcy petition
The creditor must contact the competent district court (depending on where the registered office of the debtor is located) in order to file a bankruptcy petition against the debtor.
He then has to prove that the 3 conditions required to declare bankruptcy are met and provide proof of his status as a creditor.
Appearance of the debtor
The debtor is then called to appear on a date set by the court to defend himself against the bankruptcy petition filed against him.
The competent court will only declare bankruptcy on the basis of the information supplied and if the 3 conditions required for a bankruptcy petition are satisfied.