以物抵债,指债权人与债务人之间存在金钱债务,双方约定将债务人财产作价交付债权人抵偿债务的行为。实践中,主要分为两种类型,包括当事人双方协商的以物抵债和民事强制执行程序中的以物抵债程序,本文仅就前种以物抵债类型进行探讨。
近年来,随着新冠疫情影响,经济形势发生变化,再加上政策调控等多重因素打击,导致地产行业遭遇寒冬,现金流频繁遭受考验。迫于资金回款压力,为了缓解僵局,地产企业推出“工抵房”“内部房”等房源以期减轻对外负债或实现现金回流。其中,“工抵房”也被称为工程抵款房,是开发商用于给工程方抵扣工程款的一种方式,也是大众所俗称以物抵债的一种常见形式。虽然,工程方的需求是现金而并非房屋,但目前经济形势下,工程方面临开发商无款支付的现实局面,只能无奈被迫接受“工抵房”。尽管“工抵房”的出现使得开发商不再面临房子无路销售的难题,同时解决了部分应付款项;工程方能获得部分“工抵房”以解决工程资金被长期拖欠的难题;购房者可以更低价格买到“工抵房”从而降低购房成本,这一循环链看似多赢,实则隐藏大量法律风险。本文将从“工抵房”的角度,以工抵债权人的视角,对以物抵债的性质、模式、法律风险等维度进行分析,以期对实践和后续研究有所贡献。
一、以物抵债协议的性质
The Supreme Court in Sevilleja v Marex Financial Ltd [2020] UKSC 31 has brought much needed clarity to the legal basis and scope of the so-called ‘reflective loss’ principle. The effect of the decision is a ‘bright line’ rule that bars claims by shareholders for loss in value of their shares arising as a consequence of the company having suffered loss, in respect of which the company has a cause of action against the same wrong-doer.
A recent decision of the High Court of New Zealand provides helpful guidance for insolvency practitioners on how aspects of the voluntary administration regime should operate in the context of the COVID-19 pandemic.
On 30 March 2020, the board of directors of EncoreFX (NZ) Limited resolved to appoint administrators to the company. By then, New Zealand was already at Level 4 on the four-level alert system for COVID-19.
The UK Court of Appeal has held that legal privilege outlasts the dissolution of a company in Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600.
Legal advice privilege applies to communications between a client and its lawyers. The general rule is that those communications cannot be disclosed to third parties unless and until the client waives the privilege.
In Secretary of State for Business, Energy and Industrial Strategy v PAG Asset Preservation Ltd [2019] EWHC 2890 the Secretary presented petitions under s 124A of the Insolvency Act 1986 to wind up two companies on public interest grounds. These companies were PAG Asset Preservation Limited and MB Vacant Property Solutions Limited (the Companies).
The Privy Council has rejected an attempt to block a cross-border liquidation on procedural grounds in UBS AG New York v Fairfield Sentry [2019] UKPC 20.
The High Court in DHC Assets Ltd v Arnerich [2019] NZHC 1695 recently considered an application under s 301 of the Companies Act (the Act) seeking to recover $1,088,156 against the former director of a liquidated company (Vaco). The plaintiff had a construction contract with Vaco and said it had not been paid for all the work it performed under that contract.
Regan v Brougham [2019] NZCA 401 clarifies what is needed to establish a valid guarantee.
A Term Loan Agreement was entered into whereby Christine Regan and Mark Tuffin lent $50,000 to B & R Enterprises Ltd. Rachael Dey and Bryce Brougham were named as Guarantors. Bryce Brougham was the only guarantor to sign the agreement. The Company was put into liquidation and a demand made against the Guarantor.
The guarantor argued that the guarantee was not enforceable based on the following:
The Court of Appeal in 90 Nine Limited v Luxury Rentals NZ Limited [2019] NZCA 424 allowed an appeal from a creditor in respect of an application to liquidate the respondent over a failure to pay a statutory demand.
The High Court in Henderson v Walker [2019] NZHC 2184 found a liquidator, Mr Walker, liable for breach of confidence in relation to the distribution of part of Mr Henderson's private information, awarding $5,000 in damages. The liquidator was also found liable for invasion of privacy in relation to distributions made to the Official Assignee, although no separate damages were awarded.