Partnerships
BANKRUPTCY ACT 1988
REVISED
Updated to 1 June 2016
AN ACT TO CONSOLIDATE WITH AMENDMENTS THE LAW RELATING TO BANKRUPTCY AND TO PROVIDE FOR RELATED MATTERS. [13th July, 1988]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART I
Preliminary and General
Short title.
1.—This Act may be cited as the Bankruptcy Act, 1988.
Commencement.
2.—This Act shall come into operation on such day not later than 1 January, 1989 as the Minister by order appoints.
Annotations:
Editorial Notes:
E8
Power pursuant to section exercised (1.01.1989) by Bankruptcy Act 1988 (Commencement) Order 1988 (S.I. No. 348 of 1988).
2. The 1st day of January, 1989, is hereby appointed as the day on which the Bankruptcy Act, 1988, shall come into operation.
Interpretation.
3.—In this Act, unless the context otherwise requires,—
“adjudication” means adjudication in bankruptcy;
“after-acquired property” has the meaning assigned to it by section 44 (5);
“arrangement” means an arrangement in pursuance of an order for protection under Part IV;
“arranging debtor” means a debtor who has been granted an order for protection under Part IV;
“assignees” means the Official Assignee and the creditors’ assignee, if any;
F1[‘Bankruptcy Inspector’ means a person standing appointed for the time being—
(i) to the position of Bankruptcy Inspector in the Office of the Official Assignee in Bankruptcy on the day before the coming into operation of section 29 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, or
(ii) to the position of Bankruptcy Inspector pursuant to section 12 of the Personal Insolvency Act 2012;]
“bankruptcy summons” has the meaning assigned to it by section 8 (1);
“conveyance”, in relation to land, includes assignment and transfer;
“the Court” means the High Court;
“creditors’ assignee” means a person chosen and appointed as such under section 18 (1);
F2[‘Debt Settlement Arrangement’ has the same meaning as in the Personal Insolvency Act 2012;]
F3[‘Director’ means the Director of the Insolvency Service;]
F4[‘insolvency proceedings’ means insolvency proceedings opened in a member state under Article 3 of the Insolvency Regulation where the debtor or each debtor is an individual or deceased;
‘Insolvency Regulation’ means Council Regulation (EC) No. 1346/2000 of 29 May 20001 on insolvency proceedings;]
“land” includes any estate or interest in or charge over land;
F4[‘liquidator’ means a liquidator appointed in insolvency proceedings;]
F4[‘member state’ means a member state of the European Communities other than the State and Denmark;]
“the Minister” means the Minister for Justice;
F1[‘Official Assignee’ means a person standing appointed for the time being—
(i) to the position of Official Assignee in Bankruptcy in the Office of the Official Assignee in Bankruptcy on the day before the coming into operation of section 29 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, or
(ii) to the position of Official Assignee pursuant to section 12 of the Personal Insolvency Act 2012;]
F2[‘Personal Insolvency Arrangement’ has the same meaning as it has in the Personal Insolvency Act 2012;]
“prescribed”, except in relation to court fees, means prescribed by rules of court;
F5[‘principal private residence’ has the same meaning as it has in section 2 of the Personal Insolvency Act 2012 subject to the modification that a reference to the debtor shall be taken to be a reference to the bankrupt;]
F6[‘property’—
(a) includes money, goods, things in action, land and every description of property, whether real or personal,
(b) includes obligations, easements and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property,
(c) in relation to proceedings opened in the State under Article 3(1) of the Insolvency Regulation, includes property situated outside the State, and
(d) in relation to proceedings so opened under Article 3(2) of the Regulation, does not include property so situated;]
“registered”, in relation to land, means registered in the Registry of Deeds or the Land Registry, as may be appropriate;
“secured creditor” means any creditor holding any mortgage, charge or lien on the debtor’s estate or any part thereof as security for a debt due to him;
F2[‘statement of affairs’ means a statement of the debtor’s or bankrupt’s affairs in the form specified in rules of court;]
F2[‘trustee’ means a person appointed as trustee under Part V;]
“vesting arrangement” has the meaning assigned to it by section 93 (2).
F7[(2) Parts II, III, IV (in so far as it relates to vesting arrangements), V, VI and VIII and the First Schedule are subject to Chapters I (general provisions) and III (secondary insolvency proceedings) of the Insolvency Regulation.]
Annotations:
Amendments:
F1
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 27, S.I. No. 463 of 2013.
F2
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 142, S.I. No. 462 of 2013.
F3
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 27, S.I. No. 463 of 2013.
F4
Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(a)(i).
F5
Inserted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 2, S.I. No. 34 of 2016.
F6
Substituted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(a)(ii).
F7
Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(a)(iii).
1OJ L160 of 30.6.2000
Presenting petition.
(1872, s. 20)
11.—(1) A creditor shall be entitled to present a petition for adjudication against a debtor if—
(a) the debt owing by the debtor to the petitioning creditor (or, if two or more creditors join in presenting the petition, the aggregate amount of debts owing to them) F12[amounts to more than €20,000],
(1872, s. 21 in pt.)
(b) the debt is a liquidated sum,
(cf. 1857, s. 115)
(c) the act of bankruptcy on which the petition is founded has occurred within three months before the presentation of the petition, and
(New: cf. 1857, s. 409)
(d) the debtor (whether a citizen or not) is domiciled in the State or, F13[within 3 years] before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in the State or has carried on business in the State personally or by means of an agent or manager, or is or within the said period has been a member of a partnership which has carried on business in the State by means of a partner, agent or manager.
(1872, s. 21 in pt.)
(2) If a creditor who presents or joins in presenting the petition is a secured creditor, he shall in his petition set out particulars of his security and shall either state that he is willing to give up his security for the benefit of the creditors in the event of the debtor being adjudicated bankrupt or give an estimate of the value of his security. Where a secured creditor gives an estimate of the value of his security, he may be admitted as a petitioning creditor or joint petitioning creditor to the extent of the balance of the debt due to him after deducting the value so estimated in the same manner as if he were an unsecured creditor but he shall on application being made by the Official Assignee after the date of adjudication give up his security to the Official Assignee for the benefit of the creditors upon payment of such estimated value.
(1857, s. 120)
F14[(3) Subject to subsections (4) and (5) a debtor may petition for adjudication against himself.
(4) A debtor may not present a petition for adjudication unless the petition is accompanied by an affidavit sworn by the debtor that he has, prior to presenting the petition, made reasonable efforts to reach an appropriate arrangement with his creditors relating to his debts by making a proposal for a Debt Settlement Arrangement or a Personal Insolvency Arrangement to the extent that the circumstances of the debtor would permit him to enter into such an arrangement.
(5) A debtor may not present a petition for adjudication unless the petition is accompanied by a statement of affairs and such statement of affairs discloses that the debts of the debtor exceed the assets of the debtor by any amount greater than €20,000. ]
Annotations:
Amendments:
F12
Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 145(a), S.I. No. 462 of 2013.
F13
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(a), commenced on enactment.
F14
Substituted and inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 145(b), S.I. No. 462 of 2013.
Modifications (not altering text):
C12
Application of Act extended (1.03.2009) by Taxes Consolidation Act (39/1997), s. 960M, as inserted by Finance (No. 2) Act 2008 (25/2008), s. 97 and sch. 4 para. 1, commenced as per s. 97 and sch. 4 para. 6.
Taking by Collector-General of proceedings in bankruptcy.
960M.— (1) The Collector-General may in his or her own name apply for the grant of a bankruptcy summons under section 8 of the Bankruptcy Act 1988 or present a petition for adjudication under section 11 of that Act in respect of tax (except corporation tax) due and payable or any balance of such tax.
(2) Subject to this section, the rules of court for the time being applicable and the enactments relating to bankruptcy shall apply to proceedings under this section.
Editorial Notes:
E12
Previous affecting provision: subs. (1) 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; further amended as per F-note above.
Actions by Official Assignee and bankrupt’s partners.
(cf. 1857, s. 278)
30.—Where a member of a partnership is adjudicated bankrupt the Court may authorise the Official Assignee to commence and prosecute any action in the names of the Official Assignee and of the bankrupt’s partner to recover any debt due to or any property of the partners, and any release by such partner of the debt or demand to which the action relates shall be void; but notice of the application for authority to commence the action shall be given to the bankrupt’s partner and he may show cause against it and on his application the Court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action. If the partner does not claim any benefit from the action he shall be indemnified against costs in respect thereof as the Court directs.
Annotations:
Modifications (not altering text):
C13
Application of section restricted (25.07.1994) by Investment Limited Partnerships Act 1994 (24/1994), s. 23, S.I. No. 213 of 1994.
Bankruptcy Act, 1988.
23.— For the purposes of the application of sections 30, 31, 32 and 36 of the Bankruptcy Act, 1988, a limited partner shall not be regarded as a partner of an investment limited partnership.
Petition against one or more partners.
(cf. 1857, s. 122)
31.—(1) Any creditor whose debt is sufficient to entitle him to present a petition for adjudication against all the partners of a firm may present a petition against any one or more partners of the firm without including the others.
(2) Where a petition for adjudication is presented against more than one person the Court may make an order of adjudication against one or more of them and dismiss the petition as to the remainder.
Annotations:
Modifications (not altering text):
C14
Application of section restricted (25.07.1994) by Investment Limited Partnerships Act 1994 (24/1994), s. 23, S.I. No. 213 of 1994.
Bankruptcy Act, 1988.
23.— For the purposes of the application of sections 30, 31, 32 and 36 of the Bankruptcy Act, 1988, a limited partner shall not be regarded as a partner of an investment limited partnership.
Furnishing of partnership accounts to Official Assignee.
(New)
32.—Where a member of a partnership is adjudicated bankrupt the Official Assignee may require the other partner or partners to deliver to the Official Assignee such accounts and information relating to the partnership estate and the bankrupt’s interest therein (duly verified by affidavit if necessary) as the Official Assignee may deem necessary.
Annotations:
Modifications (not altering text):
C15
Application of section restricted (25.07.1994) by Investment Limited Partnerships Act 1994 (24/1994), s. 23, S.I. No. 213 of 1994.
Bankruptcy Act, 1988.
23.— For the purposes of the application of sections 30, 31, 32 and 36 of the Bankruptcy Act, 1988, a limited partner shall not be regarded as a partner of an investment limited partnership.
Duty of bankrupt partner.
(New)
33.—Where a member of a partnership is adjudicated bankrupt he shall deliver to the Official Assignee within the prescribed time a separate statement of affairs in respect of the partnership in the prescribed form.
Joint and separate properties.
(New)
34.—(1) In the case of partners the joint property shall be applicable in the first instance in payment of their joint debts, and the separate property of each partner shall be applicable in the first instance in payment of his separate debts.
(2) Where there is a surplus of the joint property, it shall be dealt with as part of the respective separate properties in proportion to the right and interest of each partner in the joint property.
(3) Where there is a surplus of any separate property it shall be dealt with as part of the joint property so far as necessary to meet any deficiency in the joint property.
Actions on joint contracts.
(New)
35.—Where a bankrupt is a party to a contract jointly with any other person, that other person may sue or be sued in respect of the contract without joining the bankrupt.
Proceedings in partnership name.
(New)
36.—(1) Any two or more persons, being partners, or any person carrying on business under a partnership name, may take proceedings or be proceeded against under this Act in the name of the firm, but in such case the Court may, on application by any person interested, order the names of the persons to be disclosed in such manner, and verified on oath or otherwise, as the Court may direct.
(2) Notwithstanding anything contained in subsection (1) no order of adjudication shall be made against a firm in the firm name but it shall be made against the partners individually with the addition of the firm name.
Annotations:
Modifications (not altering text):
C16
Application of section restricted (25.07.1994) by Investment Limited Partnerships Act 1994 (24/1994), s. 23, S.I. No. 213 of 1994.
Bankruptcy Act, 1988.
23.— For the purposes of the application of sections 30, 31, 32 and 36 of the Bankruptcy Act, 1988, a limited partner shall not be regarded as a partner of an investment limited partnership.
Limited partnerships.
(33/1963, s. 345 (8))
37.—Subject to such modifications as may be made by rules of court, the provisions of this Act shall apply to limited partnerships in like manner as if limited partnerships were ordinary partnerships and, on all the general partners of a limited partnership being adjudicated bankrupt, the assets of the limited partnership shall vest in the Official Assignee.
Joint and separate dividends.
(cf. 1857, s. 266)
74.—If one or more of the partners of a firm is a bankrupt, any creditor of the firm shall be entitled to prove his debt or be admitted as a creditor for the purpose of voting in the choice and appointment of a creditors’ assignee but such creditor shall not receive any dividend out of the separate estate of the bankrupt until all the separate creditors shall have received the full amount of their respective debts.
Winding up of partnerships and deceased persons’ estates.
(New)
138.—(1) The Court may, upon giving notice to such persons as it may direct, make such orders and give such directions as it thinks proper for winding up and settling the affairs of any partnership or the estate of a deceased person in which the bankrupt has an interest.
(2) All consequential accounts and enquiries shall be taken and made in such office of the Court as the Court may direct.