El crédito por intereses en el concurso

Abstract

The Spanish �Insolvency Act� (Ley 22/2003, 9th July, Insolvency) regulates the insolvent debtor´s obligation to pay interest to creditors �interest credits- in two different articles: article 59 that states that, when the debtor is declared insolvent by the Court, the accrual of statutory and conventional interest is suspended; and article 92.3 states, when graduate credits, that debts owed to interest payments (including remunerative or compensation and arrears or default interests),will be considered as third level subordinated claims . The prevailing interpretation of both articles leads to the conclusion that suspension extends to any type of debt interest and that, also, both types of interest (remunerative and arrears interest) will be subordinate claims if they were incurred prior to the declaration of insolvency. However, considering the difference between the two types of debt interest (difference of concepts, nature and legal status) and the fundamental Principles of Insolvency Law, this study develops the hypothesis that the legal regime applicable to remunerative interest and default interest is different; it also explores the difference between the interest accrued before or after the declaration of insolvency. After a thorough study of the aforementioned bankruptcy institutions, the study concluded that the default interest accrued prior to the insolvency declaration will be subordinated claims (article 92.3), and that this class of credits accrued after the bankruptcy declaration are suspended (article 59), without prejudice to any subsequent reactivation. This interpretation leaves out the specialities of wage claims and secured loans. But, the legal regime applicable to claims for compensation or remunerative credits for interest must be different: those applicable prior to the insolvency declaration should follow the legal regime applicable to the main credit, with some exceptions; and those arising from contracts which remain in force after the declaration of bankruptcy must be considered claims against the estate (articles 61 and 62 in conjunction with article 84.2.4º).