The insolvency administrator wants back a payment you received

The case, in five lines

What is brought

Defence against the concursal rescission action (acción rescisoria concursal) aimed at a payment (arts. 226 to 236 of the TRLC, the consolidated Spanish Insolvency Act), which the insolvency administrator brings through an incidente concursal (an ancillary claim within the insolvency case) to return the money to the insolvency estate.

Before which court

The sección de lo mercantil of the Tribunal de Instancia (the commercial division of the first-instance court) hearing the insolvency case, that is, the insolvency judge. The judgment in the ancillary claim is appealed before the Audiencia Provincial (the provincial appellate court).

Deadline

For you, ten working days from service to answer the claim and propose your evidence (arts. 536 and 539 TRLC); the deadline set in the burofax has no legal force. The insolvency administrator has no limitation or time-bar period of its own: it may sue while the insolvency case remains open. Only acts carried out in the two years before the date of the insolvency filing, and those between the filing and the declaration, can be rescinded, or those in the two years before the notice of negotiations in the case of art. 226.2. Appeal: twenty days from service of the judgment (art. 458 LEC, the Spanish Civil Procedure Act).

Who can bring it

The claim is brought by the insolvency administrator (art. 231 TRLC). A creditor may bring it only if it first required the administrator in writing to do so, identifying the act and the ground for rescission, and the administrator did not sue within the following two months (art. 232). The claim is directed against the insolvent company and against whoever was a party to the act, that is, against you as the recipient of the payment (art. 233).

Financial risk

If you lose, you return what you collected to the estate and your claim revives on the list of creditors, usually as an ordinary claim, with the question of interest still open. If the judgment finds bad faith, the claim becomes subordinated and you are also liable for all the damage caused to the estate. Costs of the ancillary claim follow, as a rule, the losing party. If you win, you keep the payment.

Rescission does not pursue fraud: it pursues the money that left

Article 226.1 of the TRLC declares rescindable any acts harmful to the insolvency estate carried out by the debtor within the two years before the date of the insolvency filing, as well as those carried out between that date and the declaration, «even where there was no fraudulent intent». That last phrase is what unsettles whoever receives the burofax: nobody needs to have deceived anybody. The action does not judge your conduct, it judges the effect of the act on the assets that now have to be shared out among all the creditors.

That is why the defence almost everyone arrives with, «I collected what I was owed in good faith», is not enough on its own. The Tribunal Supremo (the Spanish Supreme Court) has held that the harm the provision requires is an unjustified sacrifice of assets: an outflow of money or property that impoverishes the insolvent company without a justification that offsets it. The useful argument is whether your collection had that justification, not whether you acted honestly.

Good faith does not disappear from the case: it moves elsewhere. It does not save the payment, but it decides what happens to you if you lose it, because a judgment finding bad faith orders you to pay damages and downgrades your claim, as explained below. It is worth being clear about this from the first document you file, because whatever you say about what you knew of the company will weigh on both questions at once. And a note on scope: rescission is an action to restore the estate and is independent of the classification of the insolvency as culpable, which is a separate part of the same proceedings.

The two years run from the insolvency filing, and sometimes from earlier

The clock does not start at the insolvency declaration, which is the date shown in the public notice and the one almost everyone looks at, but at the date on which the company, or a creditor, filed the application. Weeks or months may pass between the two, and acts carried out in that interval are also rescindable. A payment made twenty-six months before the order may fall within the window if the application was filed three months before the declaration.

Article 226.2, in the wording in force since 26 September 2022, adds a second window. If the company notified the court that it was negotiating with its creditors, or intended to do so, to reach a restructuring plan, the two years may be counted back from that notice, provided no plan was approved or it was not court-sanctioned, and the insolvency was declared within the year following the end of the effects of the notice or of its extension. In practice this stretches the suspect period by many months.

The first task is therefore arithmetical and documentary: the exact date of the payment, which is the date it was debited from the insolvent company's account and not the invoice date; the filing date; the date of any notice of negotiations; and the date of the order. If the payment falls outside the window, the concursal rescission action is not available, and the insolvency administrator would be left only with the general-law challenge actions that article 238 allows to be brought before the same judge, with very different requirements: the actio pauliana, for example, requires fraud.

Which presumption applies to you decides who has to prove what

The TRLC splits the burden of proof into three tiers. Article 227 presumes harm, with no evidence to the contrary allowed, in two cases: gratuitous acts, except customary gifts, and payments or other acts extinguishing obligations that fell due after the insolvency declaration, unless they were secured by a charge over property. If you were paid early on a debt that was not due until after the order, whether there was harm is not up for debate: the statute takes it as given, and the defence shifts to the time window or to the exclusions in article 230.

Article 228 presumes harm, unless proven otherwise, in acts of disposal for consideration in favour of persons specially related to the insolvent company, in the creation of security over property for pre-existing debts, and in early payments that were secured. In a company, specially related persons include, among others, shareholders holding at least ten per cent of the capital (five per cent if listed), de jure or de facto directors and those who held that position in the two years before the declaration, and companies in its group (art. 283). If you are the shareholder who repaid himself his loan, this is the route the insolvency administrator will take; whether a simple payment counts as an act of disposal for these purposes is debated, but the courts examine such repayments very closely.

Everything else falls under article 229: harm must be proved by whoever brings the action. This is where most payments of overdue invoices to suppliers, lenders or professionals sit, and this is where a case is won. A burofax asserting that the payment «is harmful» without explaining why has proved nothing, and the defence must force the insolvency administrator to demonstrate the specific sacrifice of assets that the payment caused.

Collecting an overdue invoice is not, as a rule, harming the estate

The Tribunal Supremo has held that paying a debt that is due and payable within the suspect period is, as a general rule, justified: the company was bound to pay and you were entitled to be paid. That is the starting rule, and an insolvency administrator who wants to overturn it has to prove exceptional circumstances that turn that specific payment into an unjustified sacrifice of assets.

What almost nobody tells you is what those circumstances are, and that they need not all be present. The Supreme Court has taken into account the company's insolvency at the time of payment, how close it was to the insolvency filing, whether the recipient knew of the situation or was in a position to know, and whether the claim paid would have been subordinated in the insolvency; and it has made clear that actual insolvency at the time of payment is not an essential requirement. A selective payment to one creditor while the others go unpaid, when the insolvency can already be seen coming, is the typical case for rescission.

The defence is therefore built on facts, not principles. In your favour: that the payment followed the usual timing and method of the relationship; that you kept supplying afterwards, so that the money left in exchange for value and not merely to clear old debt; and article 230.1, which declares non-rescindable the ordinary acts of the debtor's business carried out under normal conditions, meaning both things at once, an act within the company's ordinary line of business and one made on market terms. Against you: a single, extraordinary transfer clearing months of arrears after supplies were cut off, shortly before the insolvency.

The ancillary claim gives you ten days and a single chance for evidence

Rescission is not argued in an ordinary lawsuit: article 234 channels it through the incidente concursal, before the insolvency judge, which today is the sección de lo mercantil of the Tribunal de Instancia hearing the case. The claim is filed by the insolvency administrator, which has standing (art. 231), against the insolvent company and against whoever was a party to the act, which is you (art. 233). If a creditor sues instead, it must be checked that it first required the administrator in writing, identifying the act and its ground, and then let two months pass (art. 232): without that, it has no standing.

Once the claim is admitted, you are summoned to answer within ten days in the form used for ordinary proceedings (art. 536). And article 539 adds the rule that decides more cases than any other: in the ancillary claim, evidence is proposed in the written pleadings. There is no preliminary hearing at which to fill gaps: expert reports, witnesses and documents are requested and produced with the defence. If you do not answer, or if there are only unchallenged documents, the judge may give judgment without a hearing (art. 540).

There is no prior requirement that you must meet or that you can raise as an objection. The prior attempt at an appropriate dispute resolution method required by article 5 of Organic Law 1/2025 (LO 1/2025) is not required for this action, which is brought within the insolvency through its own channel, and in any event that burden falls on the claimant, not the defendant. Nor does the insolvency administrator have a limitation or time-bar period of its own: it may sue while the insolvency is open and it remains in office. What is possible, and sometimes advisable, is to negotiate a partial repayment with the insolvency administrator, always in writing and with the recognition of your claim settled in the same agreement.

If you lose, your claim revives: good faith decides where it ranks

Article 235 provides that a judgment upholding the claim declares the act ineffective. Where what is rescinded is a payment, treated as a unilateral act, the judgment orders what was collected to be returned to the estate and orders the corresponding claim to be entered on the list of creditors: the debt the company paid you revives and you become a creditor in the insolvency for that amount. Article 236.2 gives it the ranking that applies to it, which for a supplier is usually that of an ordinary claim.

This is where good faith comes back. If the judgment finds bad faith on your part, the revived claim is subordinated (arts. 236.3 and 281.1.6 TRLC), which in most insolvencies means recovering nothing, and you are also ordered to compensate all the loss and damage caused to the estate (art. 235.5). If you are a specially related person, your claim would already be subordinated under article 281.1.5, subject to the exceptions in its paragraph 2. That is why, even when rescission looks likely, fighting the bad faith finding is worth money.

As for interest, the insolvency administrator usually claims statutory interest from the date of payment. Article 235 mentions fruits and interest for contracts with reciprocal obligations and statutory interest where restitution is made by value, but for a unilateral act it speaks only of returning what was received, so the point is arguable. The judgment in the ancillary claim can be appealed before the Audiencia Provincial (art. 547 TRLC) within twenty days of service (art. 458 LEC), and costs of the ancillary claim follow, as a rule, the losing party.

How we run the case, step by step

1. 1

   Pinning down the dates before answering anything

   We reconstruct the date the payment was debited from the insolvent company's account, the due date of each invoice paid, the date of the insolvency filing, the date of any notice of negotiations and the date of the order. The burofax is not answered with comments on what you knew about the company: that sentence ends up in the ancillary claim.

2. 2

   Placing the payment in its tier of proof

   We determine whether the payment falls under the irrebuttable presumption in article 227, the rebuttable one in article 228 or the general rule in article 229, and whether you are a specially related person. If a creditor is suing, we check its prior written requirement and the two months under article 232.

3. 3

   Gathering evidence of the ordinary course of business

   We gather the payment history for the last two or three years, the contracts, the delivery notes for what was supplied after the payment and the correspondence. On that basis we decide whether an accounting expert report on the insolvent company's position at the date of payment is needed.

4. 4

   Answering within ten days with all evidence proposed

   The defence denies harm, relies on article 230.1 if the payment was ordinary and on normal terms, and proposes documents, witnesses and expert evidence at that point, because in the ancillary claim evidence is proposed in the written pleadings. In the alternative, it denies bad faith and asks for recognition of the claim that would revive.

5. 5

   Weighing a settlement and preparing the hearing

   With the evidence on the table, the real risk is measured. If it makes sense, a partial repayment is negotiated with the insolvency administrator, with the claim recognised in the same document, which is put before the insolvency judge. If not, the hearing is prepared with the person in charge of collections as a witness and with the expert.

6. 6

   Judgment, appeal and enforcement

   The judgment can be appealed within twenty days of service. If you are ordered to return the money, we make sure the revived claim enters the list of creditors with the correct ranking and that no interest is charged that is not owed.

The law that applies

• Art. 226 TRLC. Declares rescindable the acts harmful to the estate carried out in the two years before the insolvency filing and those carried out up to the declaration, even without fraudulent intent, and extends the window to the two years before the notice of negotiations where no restructuring plan was approved or sanctioned and the insolvency is declared within the year after the notice's effects end. BOE-A-2020-4859
• Art. 227 TRLC. Presumes harm, with no evidence to the contrary allowed, in gratuitous acts of disposal, except customary gifts, and in payments or other acts extinguishing obligations falling due after the insolvency declaration, unless they were secured by a charge over property. BOE-A-2020-4859
• Art. 228 TRLC. Presumes harm, unless proven otherwise, in acts of disposal for consideration in favour of persons specially related to the debtor, in the creation of security over property for pre-existing obligations or those replacing them, and in early payments that were secured. BOE-A-2020-4859
• Art. 230 TRLC. Excludes from rescission in all cases the ordinary acts of the debtor's professional or business activity carried out under normal conditions, security and payments for public claims aimed at regularising or mitigating the debtor's criminal liability, security in favour of the Wage Guarantee Fund, and certain acts within payment systems and bank resolution. BOE-A-2020-4859
• Art. 235 TRLC. A judgment upholding the claim declares the act ineffective; for unilateral acts it orders the performance to be returned to the estate and the corresponding claim to be entered on the list; where the asset cannot be returned, its value plus statutory interest is paid, and bad faith adds liability for all damage caused to the estate. BOE-A-2020-4859
• Art. 236 TRLC. The defendant's entitlement arising from rescission of a contract with reciprocal obligations is a claim against the estate, payable at the same time as the restitution; that arising from rescission of a unilateral act is an insolvency claim with its corresponding ranking, and if the judgment finds bad faith it is subordinated. BOE-A-2020-4859
• Arts. 536 y 539 TRLC. Once the ancillary claim is admitted, the other parties are summoned to answer within a common ten-day period in the form laid down for ordinary proceedings, and evidence is proposed in the written pleadings, with its admission decided by court order. BOE-A-2020-4859
• Art. 281 TRLC. Classifies as subordinated, among others, the claims of persons specially related to the debtor, subject to the exceptions in its paragraph 2, and claims arising from an insolvency rescission in favour of whoever the judgment declared a bad faith party to the challenged act. BOE-A-2020-4859

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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