Denunțarea contractelor în derulare de către administratorul judiciar. Natura și cuantumul despăgubirilor la care este îndreptățit cocontractantul potrivit art. 123 alin. (4) din Legea insolvenței nr. 85/2014 ca urmare a denunțării (damnum emergens ș
Termination of ongoing agreements by the official receiver. Nature and amount of indemnifications to which the co-contractor is entitled under Article 123(4) of Insolvency Law no. 85/2014 further to the termination of agreements (damnum emergens and/

Summary/Abstract: According to the insolvency law, the official receiver, as a debtor’s representative, has the right to unilaterally terminate ongoing agreements. However, the practitioner’s right is not an absolute one, since it often goes against the co-contractor’s right for the business relation to be continued, or even the creditors’ joint interest (in an average- and long-term forecast). Practically, when assessing the advisability of terminating the agreement, the official receiver must consider, in addition to the common legal and economic issues, the potential amount of any indemnifications to be paid under Article 123(4) of Law no. 85/2014. If, however, it chooses to terminate the agreement, it could be claimed that the practitioner has anticipated and accepted the case where the insolvent debtor should incur the indemnifications. The good-faith co-contractor concerned by the termination must be afforded actual (not just merely illusory and abstract) protection of its rights, either by acknowledging the right to continue the business relations (by granting the challenge against termination), or by paying fair indemnifications (at least as high as the damnum emergens component), as “emolument” for the abrupt termination of the agreement. The conclusion follows the legislative recommendations of the UNCITRAL Commission on National Insolvency.

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