UNLIQUIDATED DEBTS AND BANKRUPTCY
When debtors are considering bankruptcy, one of the important things is to check which of their various debts and liabilities will be a part of their bankruptcy. Debts which are a part of the bankruptcy are described in the Bankruptcy Act as ‘provable debts’.
The general rule is set out in section 82 of the Act. It is that all debts and liabilities are provable, provided that they stem from an obligation incurred before the date of the bankruptcy. Section 82 then sets out some exceptions.
One of the exceptions to the general rule is ‘Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust
….’ That is, a demand for unliquidated damages is not part of the bankruptcy, unless it arises by reason of a contract, promise, or breach of trust.
Unliquidated Damages
Unliquidated damages are damages where the amount has not been set. The amount of damages can be set by written agreement between the parties, in which a specific figure is clearly agreed upon, or by order of a court.
Unliquidated Damages Arising by Reason of a Contract
Unliquidated damages that arise from breach of a contract are provable, that is, they are a part of a bankruptcy. An example of unliquidated damages arising from a breach of a contract is the situation of a debtor who has a car on finance, and fails to make the payments when they are due. If the lender repossesses the car, and plans to sell it and then seek to recover a shortfall from the debtor, the lenders prospective loss is an example of unliquidated damages. The amount will not be set until the car is sold, and the calculations done to establish the exact figure. Even though the amount due to the lender is unliquidated, if the debtor becomes bankrupt at that time, the liability to the lender is provable, that is it is a part of the bankruptcy, because it arises by reason of a contract.
Tort
A tort is a civil wrong, for which the victim can sue the perpetrator for damages.
Examples of torts are assault, wilful damage to property, defamation, and negligence by which the victim suffers personal injury, or damage to their property.
A common example of negligence is when a person drives a car without sufficient care, causing a motor accident. The driver can be sued for the tort of negligence.
At the time when the victim first makes a demand on the negligent driver, for personal injury or damage to the victim’s car, the claim is one for unliquidated damages for a tort. It is not provable in bankruptcy if the negligent driver becomes bankrupt at that time.
Liquidating a Claim
If the negligent driver wants to become bankrupt sooner rather than later, it is necessary to liquidate the claim. The quickest way to do this is correspondence in which the precise amount of the claim is agreed.
An example is where the Ogre Insurance Company has written to the negligent driver, who is named Denis Driver, claiming that their insured Bella Blameless has suffered damages of $15,219.26 due to the negligent driving of Denis on 1 April
2007, when his vehicle failed to stop at a stop sign and collided with Bella’s vehicle.
They claim payment of $15,219.26 within 14 days, failing which legal proceedings will be commenced.
If Denis has weighed up the pros and cons carefully, and has decided to become bankrupt, he can either wait and allow Ogre on behalf of Bella to sue him, and get a final judgment for $15,219.26 plus costs and interest, and then become bankruptÍž or if he wishes to resolve the matter more quickly, he can write to Ogre, in a letter not headed without prejudice, and not denying liability. His letter could be along the following lines:
The Manger,
Ogre Insurance Company.
00 Smith Street,
Dullsville.
Dear Sir,
Thank you for your letter of 1 August 2007 in which you claim $15,219.26 due to an accident on 1 April 2007 in which I collided with a car driven by Bella Blameless at
……………………[insert location]
I agree that the accident was my fault, and I agree that the amount of damage to
Bella’s vehicle is $15,219.26. I accept that it is my responsibility to pay this sum.
Yours faithfully,
Denis Driver.
It may be expected that Ogre Insurance will write back to Denis, confirming that the amount of damage is $15,219.26, and insisting that amount be paid promptly.
If Denis Driver becomes bankrupt at that point, he can use the letters back and forth to establish that the claim against him is liquidated.
If Denis is in no particular hurry, it is simpler and safer to ignore the matter and let
Ogre Insurance sue him. A final judgment of a court is clearly a liquidated sum.
Denis Driver’s Contractual Liability
If Denis Driver’s car is on finance, and he is not covered by insurance, he may decide not to bother keeping up the payments because his car is damaged, and he does not want it any more.
If he becomes bankrupt, he does not need to do anything to liquidate the claim by his finance company, because it arises ‘by reason of a contract’, and is therefore a provable debt in his bankruptcy even though the precise amount is not fixed at the present time.
Ian Macdonald
Solicitor – FCRP
August 2007