Patrimonial Rights and Bankruptcy. A Comparative Legal Analysis of the Enforceability of 'Erwerbsrechte', 'Nutzungsrechte' and 'Verbotsrechte' in Bankruptcy Proceedings

Bankruptcy law is the closing part of private law. This means that bankruptcy law terminates the individual rights of recourse of the creditors. The legislator explicitly states that the purpose of bankruptcy proceedings lies in the liquidation of all assets of the bankrupt (Article XX.98 Code of Economic Law). The assets of the bankrupt constitute collateral for his creditors. However, the creditors must take the assets of the bankrupt as they find them at the time of the declaration of bankruptcy. In exercising their right of recourse, the creditors are confronted with assets that are (in)directly subject to a property right or a personal right in favour of an individual creditor with whom the bankrupt is in a contractual relationship. Creditors are, in principle, not entitled to more rights than the bankrupt himself. The creditors’ rights of recourse cannot exceed the value of the bankruptcy estate.

The pivotal question is how the creditor’s claim to assets encumbered with a property right or a personal right of an individual creditor should be assessed. There exists a conflict between the creditors on the one hand and an individual creditor with whom the bankrupt is in a contractual relationship on the other hand. The property right or personal right of the individual creditor may limit or even erode the rights of recourse of the creditors. The assessment of this conflict is the main focus of this research project.

The research project focuses in particular on property rights or personal rights that provide the individual creditor with a claim to an asset belonging to the bankruptcy estate. The problems of legal uncertainty and incoherence mainly play at the boundary between bankruptcy law, property law and the law of obligations. The property rights and personal rights considered are divided according to their content into ‘Erwerbsrechte’, ‘Nutzungsrechte’ and ‘Verbotsrechte’.