Bankruptcy Act, 1988

Bankruptcy Act, 1988 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 1988 Bankruptcy Act, 1988 Bankruptcy Act, 1988 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Print Full ActPriontáil an tAcht Iomlán Number 27 of 1988 BANKRUPTCY ACT, 1988 ARRANGEMENT OF SECTIONS PART I Preliminary and General Section 1. Short title. 2. Commencement. 3. Interpretation. 4. Application of Act to subsisting bankruptcies and arrangements. 5. Expenses. 6. Repeals. PART II Procedure in Bankruptcy 7. Acts of bankruptcy. 8. Bankruptcy summons. 9. Arrest of absconding debtor. 10. Petition. 11. Presenting petition. 12. Petitioning creditor's costs. 13. Petition or act of bankruptcy agreed between bankrupt and creditor. 14. Adjudication: creditor's petition. 15. Adjudication: debtor's petition. 16. Cause shown against adjudication. 17. Notice of adjudication and statutory sitting. 18. Creditors' assignee. 19. Duties of bankrupt. 20. Change of name or address, etc. 21. Examination of bankrupt and other persons. 22. Admission of debt due to bankrupt. 23. Arrest of bankrupt, etc. 24. Committal to prison. 25. Examination of persons in custody. 26. Release of bankrupt from prison. 27. Warrant of seizure. 28. Search warrant. 29. Indemnity for persons acting under warrant. Partnership Cases 30. Actions by Official Assignee and bankrupt's partners. 31. Petition against one or more partners. 32. Furnishing of partnership accounts to Official Assignee. 33. Duty of bankrupt partner. 34. Joint and separate properties. 35. Actions on joint contracts. 36. Proceedings in partnership name. 37. Limited partnerships. Composition after Bankruptcy 38. Stay on realisation of estate. 39. Offer of composition. 40. Payment of composition. 41. Discharge of adjudication order. Bankrupt Dying after Adjudication 42. Bankrupt dying after adjudication. Subsequent Bankruptcy 43. Subsequent bankruptcy. PART III Administration of Property Effect of Adjudication on Bankrupt's Property 44. Vesting of property in Official Assignee. 45. Excepted articles. 46. Certificate of vesting of property in Official Assignee. 47. Vesting in Official Assignee of certain money and securities. 48. Limitation of Official Assignee's powers in relation to copyright. 49. Restrictive clause in agreement or lease. 50. Execution against debtor's property before adjudication. 51. Priority of judgment mortgage. 52. Order to put purchaser in possession. 53. Permission to mortgagee to bid at sale. 54. Discharge of persons delivering property, etc., to Official Assignee. 55. Title to property sold not to be invalidated. 56. Disclaimer of onerous property. Fraudulent and Voluntary Conveyances 57. Avoidance of fraudulent preferences. 58. Avoidance of certain transactions. 59. Avoidance of certain settlements. Management Provisions 60. Office of the Official Assignee. 61. Functions of Official Assignee in bankruptcy and vesting arrangements. 62. Bankruptcy Inspector and assistants. 63. Protection of Official Assignee. 64. Power of Official Assignee to bar entail. 65. Power of Official Assignee to appropriate part of bankrupt's income. 66. Delivery of property to Official Assignee. 67. Right of Official Assignee to transfer stocks or shares. 68. Right of Official Assignee to inspect goods pawned or pledged. 69. Receipt of property of bankrupt. 70. Claim to property in possession of bankrupt. 71. Allowances to bankrupt. 72. Redirection of letters, etc., addressed to bankrupt. 73. Appointment of receivers and managers. 74. Joint and separate dividends. 75. Debts provable in bankruptcy and arrangements. 76. Proof of debts. 77. Bankruptcy of mercantile agent. 78. Proof for costs of judgment. 79. Disallowance of debts already proved. Distribution of Estate 80. Priority of expenses, etc. 81. Preferential payments. 82. Distribution of estate. 83. Accounts and audit. 84. Official Assignee—Unclaimed Dividend Account. 85. Discharge and annulment. 86. Surplus. PART IV Arrangements under Control of Court 87. Petition for protection. 88. Restriction on dealing with property. 89. Effect of protection on execution orders. 90. Procedure on grant of protection. 91. Filing of statements. 92. Acceptance of proposal. 93. Vesting in Official Assignee. 94. Distribution of property in vesting arrangement. 95. Special private sitting. 96. Carrying proposal into effect. 97. Lodgment with Official Assignee. 98. Certificate of arranging debtor. 99. Publication in relation to arrangements. 100. Taking possession of property by Official Assignee. 101. Discharge of protection order. 102. Surplus. 103. Goods obtained on credit. 104. Private sitting for enquiry. 105. Adjudication of arranging debtor. 106. Partners obtaining protection of the Court. 107. Summoning witnesses. 108. Registration of arrangements. 109. Exclusion of Deeds of Arrangement Act, 1887. PART V Winding up by Trustee 110. Order for winding up. 111. Vesting in trustee. 112. Powers of trustee, etc. 113. Order of discharge. 114. Powers of Court. PART VI Estates of Persons Dying Insolvent 115. Petition to administer in bankruptcy estate of person dying insolvent. 116. Effect on personal representative of service of notice of petition. 117. Order for administration under Part VI. 118. Vesting and distribution. 119. Priority of funeral and testamentary expenses. 120. Application of Act. 121. Surplus. 122. Right of retainer restricted. PART VII Offences 123. Punishment of fraudulent debtors. 124. Absconding debtor. 125. Corrupt agreement with creditors. 126. False claim. 127. Non-disclosure of after-acquired property. 128. Obstructing officers. 129. Obtaining credit or trading under other name. 130. Inserting advertisement without authority. 131. Criminal liability after annulment. 132. Punishment of offences. PART VIII Miscellaneous 133. Limitation of actions. 134. Proceedings in private. 135. Power of Court to review its orders. 136. Effect of adjudication on creditors' remedies. 137. Power to stay or restrain proceedings against bankrupt. 138. Winding up of partnerships and deceased persons' estates. 139. Prohibition on distress after adjudication or protection. 140. Evidence of deceased person. 141. Notice in Iris Oifigiúil or newspaper. 142. Acting in aid of other courts. 143. Alteration of monetary limits. 144. Laying of orders before Houses of Oireachtas. FIRST SCHEDULE Proof of Debts SECOND SCHEDULE Repeals Acts Referred to Arbitration Act, 1954 1954, No. 26 Auctioneers and House Agents Act, 1967 1967, No. 9 Bankruptcy (Ireland) Amendment Act, 1872 1872, c. 58 Central Bank Act, 1971 1971, No. 24 Civil Liability Act, 1961 1961, No. 41 Civil Liability (Amendment) Act, 1964 1964, No. 17 Courts (Supplemental Provisions) Act, 1961 1961, No. 39 Criminal Procedure Act, 1967 1967, No. 12 Deeds of Arrangement Act, 1887 1887, c. 57 Enforcement of Court Orders Act, 1940 1940, No. 23 Factors Act, 1889 1889, c. 45 Fines and Recoveries (Ireland) Act, 1834 1834, c. 92 Friendly Societies Act, 1896 1896, c. 25 Irish Bankrupt and Insolvent Act, 1857 1857, c. 60 Judgment Mortgage (Ireland) Act, 1850 1850, c. 29 Moneylenders Act, 1933 1933, No. 36 Partnership Act, 1890 1890, c. 39 Preferential Payments in Bankruptcy (Ireland) Act, 1889 1889, c. 60 Statute of Limitations, 1957 1957, No. 6 Supreme Court of Judicature (Ireland) (No. 2) Act, 1897 1897, c. 66 Trustee Savings Banks Act, 1863 1863, c. 87 Marginal Abbreviations 1857—Irish Bankrupt and Insolvent Act, 1857 1872, c. 57— Debtors Act (Ireland), 1872 1872—Bankruptcy (Ireland) Amendment Act, 1872 1887, c. 57— Deeds of Arrangement Act, 1887 1888, c. 44—Local Bankruptcy (Ireland) Act, 1888 1889—Preferential Payments in Bankruptcy (Ireland) Act, 1889 1890, c. 24—Deeds of Arrangement Amendment Act, 1890 33/1963— Companies Act, 1963 16/1964— Registration of Title Act, 1964 27/1965— Succession Act, 1965 36/1971— Courts Act, 1971 RSC—The Rules of the Superior Courts, 1962 LCR—Local Court Rules, 1888 Number 27 of 1988 BANKRUPTCY ACT, 1988 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. 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; “the Bankruptcy Inspector” means the inspector referred to in section 60 (2); “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); “land” includes any estate or interest in or charge over land; “the Minister” means the Minister for Justice; “the Official Assignee” means the Official Assignee in Bankruptcy for the time being and his successors as and when appointed; “prescribed”, except in relation to court fees, means prescribed by rules of court; “property” includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in the State or elsewhere; also obligations, easements, and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property as above defined; “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; “vesting arrangement” has the meaning assigned to it by section 93 (2). Application of Act to subsisting bankruptcies and arrangements. 4.—(1) Save where otherwise provided in this Act, a bankruptcy or arrangement subsisting at the commencement of this Act shall thereafter be administered according to the provisions of this Act and the rules thereunder, without prejudice to the validity of anything duly done or suffered before such commencement. (2) The provisions of this Act and the rules shall apply accordingly, so far as they are capable of application and subject to such modifications and adaptations as may be appropriate, as if the bankrupt had been adjudicated or the arranging debtor had been granted an order for protection under this Act. Expenses. 5.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. Repeals. 6.—(1) The enactments mentioned in the Second Schedule are hereby repealed to the extent mentioned in the third column of that Schedule. (2) Any petition, summons, subpoena, order, direction, notice or other instrument presented, served, made or issued under a repealed enactment and in force at the commencement of this Act shall continue in force and be treated thereafter as if it had been presented, served, made or issued under this Act. PART II Procedure in Bankruptcy Acts of bankruptcy. (1872, s. 21 in pt.) 7.—(1) An individual (in this Act called a “debtor”) commits an act of bankruptcy in each of the following cases— (a) if in the State or elsewhere he makes a conveyance or assignment of all or substantially all of his property to a trustee or trustees for the benefit of his creditors generally; (b) if in the State or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property or any part thereof; (c) if in the State or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon, which would under this or any other Act be void as a fraudulent preference if he were adjudicated bankrupt; (d) if with intent to defeat or delay his creditors he leaves the State or being out of the State remains out of the State or departs from his dwelling-house or otherwise absents himself or evades his creditors; (e) if he files in the Court a declaration of insolvency; (f) if execution against him has been levied by the seizure of his goods under an order of any court or if a return of no goods has been made by the sheriff or county registrar whether by endorsement on the order or otherwise; (g) if the creditor presenting a petition has served upon the debtor in the prescribed manner a bankruptcy summons, and he does not within fourteen days after service of the summons pay the sum referred to in the summons or secure or compound for it to the satisfaction of the creditor. (2) A debtor also commits an act of bankruptcy if he fails to comply with a debtor's summons served pursuant to section 21 (6) of the Bankruptcy (Ireland) Amendment Act, 1872, within the appropriate time thereunder, and section 8 (6) of this Act shall apply to such debtor's summons. (3) This section applies, so far as it is capable of application, in relation to acts and things and omissions and failures to do acts and things whether occurring before, or partly before and partly after or wholly after, the commencement of this Act. Bankruptcy summons. (New: cf. 1872, s. 30 in pt.) 8.—(1) A summons (in this Act referred to as a “bankruptcy summons”) may be granted by the Court to a person (in this section referred to as “the creditor”) who proves that— (a) a debt of £1,500 or more is due to him by the person against whom the summons is sought, (b) the debt is a liquidated sum, and (c) a notice in the prescribed form, requiring payment of the debt, has been served on the debtor. (2) A bankruptcy summons may be granted to two or more creditors who are not partners and whose debts amount together to £1,000 or more. In such a case, to comply with the requisitions contained in the summons a debtor must pay or compound for the debts or give security for them to all the creditors who are parties to the summons, unless they otherwise agree. (3) The notice requiring payment of the debt shall set out the particulars of the debt due and shall require payment within four days after service thereof on the debtor. (4) The bankruptcy summons shall be in the prescribed form. (5) A debtor served with a bankruptcy summons may apply to the Court in the prescribed manner and within the prescribed time to dismiss the summons. (6) The Court— (a) may dismiss the summons with or without costs, and (b) shall dismiss the summons if satisfied that an issue would arise for trial. Arrest of absconding debtor. (1872, ss. 78, 79 and 80) 9.—(1) Where, after a bankruptcy summons has been granted against a debtor and before a petition to adjudicate him bankrupt can be presented against him, it appears to the Court that there is probable cause for believing that he is about to leave the State or to otherwise abscond with a view to avoiding payment of the debt for which the bankruptcy summons was issued or avoiding examination in respect of his affairs or otherwise avoiding or delaying proceedings in bankruptcy, the Court may cause such debtor to be arrested and brought before the Court. (2) No arrest under this section shall be lawful unless the debtor, before or at the time of his arrest, is served with the bankruptcy summons. (3) On the debtor offering such security, or making such payment or composition as the Court thinks reasonable, he shall be discharged from custody unless the Court otherwise orders. (4) Any such security, payment or composition shall not be exempt from the provisions of this Act relating to fraudulent preferences. Petition. (1857, s. 116 in pt.) 10.—An application for adjudication shall be by petition verified by the affidavit of the petitioner. 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) amounts to £1,500 or more, (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, within a year 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) (3) Any debtor may petition for adjudication against himself. Petitioning creditor's costs. (1857, s. 135) 12.—The petitioning creditor shall at his own cost present his petition and prosecute it until the statutory sitting referred to in section 17 (3), and the Court shall at or after the sitting make an order for the payment of such costs out of the estate of the bankrupt in course of priority to be settled by rules of court. Petition or act of bankruptcy agreed between bankrupt and creditor. (1857, s. 136) 13.—No petition for adjudication shall be dismissed or adjudication annulled by reason only that the petition or act of bankruptcy has been concerted or agreed upon between the bankrupt or his solicitor and any creditor or other person. Adjudication: creditor's petition. (1857, s. 127 in pt.) 14.—(1) Where the petition is presented by a creditor, the Court shall, if satisfied that the requirements of section 11 (1) have been complied with, by order adjudicate the debtor bankrupt. (1857, s. 129 in pt.; 36/1971, s. 23 (1)) (2) A copy of the order shall be served on the debtor, either personally or by leaving it at his residence or place of business in the State. Adjudication: debtor's petition. (RSC, 0.76, r. 37) 15.—Where the petition is presented by a debtor, the Court shall, on proof that he is unable to meet his engagements with his creditors and that his available estate is sufficient to realise at least £1,500, by order adjudicate the debtor bankrupt. Cause shown against adjudication. (cf. 1857, s. 129) 16.—(1) The bankrupt may, within three days or such extended time not exceeding fourteen days as the Court thinks fit from the service of the copy of the order of adjudication on him, show cause to the Court against the validity of the adjudication. (2) On an application to show cause under subsection (1) the Court shall, if within such time the bankrupt shows to its satisfaction that any of the requirements of section 11 (1) have not been complied with, annul the adjudication and may, in any other case, dismiss the application or adjourn it on such conditions as the Court thinks fit, having regard to the interests of the bankrupt, his creditors and any persons who might advance further credit to him. (3) Nothing in this section shall be construed to prevent the immediate seizure of the goods of the bankrupt on his adjudication. Notice of adjudication and statutory sitting. (1857, ss. 129, 130 in pt., cf. s. 353) 17.—(1) This section shall have effect— (a) in the case of a creditor's petition where cause has not been shown to the satisfaction of the Court for annulling the adjudication within the time for showing cause, on the expiration of that time; (b) in the case of a debtor's petition under section 15 or the adjudication of an arranging debtor under section 105 , on adjudication. (2) The Court shall cause notice of the adjudication to be given as soon as may be in the prescribed manner in Iris Oifigiúil and in at least one daily newspaper in circulation in the area where the bankrupt resides. (3) The Court shall appoint a statutory sitting to be held within three weeks of the publication of the notice at which the bankrupt shall attend and make full disclosure of his property to the Court, and his creditors may prove their debts and choose and appoint a creditors' assignee. (4) The Court, on adjourning an application to show cause under section 16 (1), may stay publication of notice of the adjudication on security being given by the bankrupt or on such other conditions as the Court thinks fit. Creditors' assignee. (1857, ss. 64, 265) 18.—(1) At the statutory sitting referred to in section 17 (3) the creditors may choose and appoint a person (in this Act referred to as the “creditors' assignee”) to represent them in the administration of the bankrupt's estate. (2) All creditors shall be entitled to vote in such choice in person or by an agent authorised in writing in that behalf, and the choice and appointment shall be made by the major part in value of the creditors. (3) The Court may reject any person so chosen who appears to the Court unfit to be a creditors' assignee or may remove a creditors' assignee and in the event of a vacancy, however arising, a new choice and appointment may be made in like manner. (4) For the purposes of appointing a creditors' assignee a creditor may prove his debt. Duties of bankrupt. (1857, s. 132 in pt.) 19.—The bankrupt shall— (a) unless the Court otherwise directs, forthwith deliver up to the Official Assignee such books of account or other papers relating to his estate in his possession or control as the Official Assignee may from time to time request and disclose to him such of them as are in the possession or control of any other person; (b) deliver up possession of any part of his property which is divisible among his creditors under this Act, and which is for the time being in his possession or control, to the Official Assignee or any person authorised by the Court or otherwise under the provisions of this Act to take possession of it; (c) unless the Court otherwise directs, within the prescribed time file in the Central Office a statement of affairs in the prescribed form and deliver a copy thereof to the Official Assignee; (d) give every reasonable assistance to the Official Assignee in the administration of the estate; (e) disclose to the Official Assignee any after-acquired property. Change of name or address, etc. (New) 20.—(1) A bankrupt shall forthwith notify the Official Assignee in writing of any change in his name or address which occurs during his bankruptcy. (2) For the purposes of subsection (1) a change in the name of a bankrupt shall be deemed to occur if the bankrupt in fact assumes the use of a different name or an additional name. (3) A bankrupt shall, whenever required by the Official Assignee to do so, forthwith notify the Official Assignee in writing of the nature of any profession, vocation, business or employment in which he is engaged. (4) A bankrupt who fails to comply with any of the provisions of this section shall be guilty of an offence. Examination of bankrupt and other persons. (1857, ss. 305 in pt., 306, 307, 308, 310; cf. 33/1963, s. 245) 21.—(1) The Court may summon before it a bankrupt or any person who is known or suspected to have in his possession or control any property of the bankrupt or to have disposed of any property of the bankrupt or who is supposed to be indebted to the bankrupt, or any person whom the Court deems capable of giving information relating to the trade, dealings, affairs or property of the bankrupt. (2) The Court may examine him on oath concerning the matters aforesaid, either orally or on written interrogatories, and may reduce his answers to writing and require him to sign them. (3) The Court may require him to produce any books of account and papers in his possession or control relating to the matters aforesaid but, where he claims any lien on books or papers produced by him, the production shall be without prejudice to that lien and the Court may determine all questions in relation to the lien. (4) A bankrupt or other person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him but none of his answers shall be admissible in evidence against him in any other proceedings, civil or criminal, except in the case of any criminal proceedings for perjury in respect of any such answer. Admission of debt due to bankrupt. (cf. 1857, s. 311) 22.—If any person on examination appears to be indebted to the bankrupt or to have in his possession or control any property of the bankrupt, the Court, on the application of the Official Assignee, may order him to pay to the Official Assignee, at such time and in such manner as the Court thinks fit, the amount or any part thereof or to deliver to the Official Assignee such property or any part thereof at such time and in such manner and on such terms as the Court may direct. Arrest of bankrupt, etc. (cf. 1857, ss. 124, 125) 23.—(1) Where it appears to the Court, at any time after making an adjudication order, on proof of probable cause for believing that a bankrupt is about to leave the State or otherwise to abscond or has removed or concealed or is about to remove or conceal any of his property with a view to avoiding payment of his debts or avoiding examination in respect of his affairs, or is keeping out of the way and cannot be served with a summons, the Court may cause him to be arrested and brought before it for examination. (cf. 1857, s. 305 in pt.) (2) Where a bankrupt has been summoned before the Court pursuant to section 21 and he does not come at the time appointed, not having an excuse (made known to the Court at the time of its sitting and allowed by it) the Court may cause him to be arrested and brought before it for examination. (cf. 1857, s. 308 in pt.) (3) Where any person summoned before the Court pursuant to section 21 after being tendered a reasonable sum for his expenses, does not come at the time appointed, not having an excuse (made known to the Court at the time of its sitting and allowed by it), the Court may cause him to be arrested and brought before it for examination. (4) The provisions of subsections (2) and (3) are without prejudice to the powers of the Court in relation to contempt or enforcement of the attendance of witnesses. Committal to prison. (1857, s. 385) 24.—Where the bankrupt or any person summoned or brought before the Court refuses to be sworn or refuses or fails to answer any lawful question put by the Court or does not fully answer any such question or refuses to sign and subscribe his examination when reduced to writing (not having any lawful excuse allowed by the Court) or to comply with any order of the Court under this Act, the Court may order that such person be committed to prison to await the further order of the Court. Examination of persons in custody. (1872, s. 73) 25.—Where the bankrupt or any person is in prison pursuant to an order of the Court under section 24 , the Court may by warrant directed to the governor of the prison order that he be brought before the Court. Where such person satisfies the Court that he has complied with its lawful requirements the Court shall order his release from custody. In any other case he may be taken back to prison without any further order. Release of bankrupt from prison. (New) 26.—If a bankrupt is in prison by virtue of section 6 of the Enforcement of Court Orders Act, 1940 , in respect of a debt incurred before adjudication, the Court may order his release. Warrant of seizure. (1857, s. 72 in pt.) 27.—(1) The Court may by warrant direct the Bankruptcy Inspector or any of his assistants to seize any property of the bankrupt. (2) An official acting under the warrant may seize any part of the bankrupt's property in the possession or control of the bankrupt and, for the purpose of seizing any such property, may enter and if necessary break open any house, building, room or other place belonging to the bankrupt where any part of his property is believed to be. Search warrant. (cf. 1857, s. 326) 28.—Where it appears to the Court that there is reason to believe that any property of the bankrupt is concealed in any house, building, room or other place not belonging to the bankrupt, the Court may grant a search warrant to the Bankruptcy Inspector or any of his assistants, or other person appointed by the Court, who may execute the warrant according to the tenor thereof. Indemnity for persons acting under warrant. (1857, s. 327) 29.—The Bankruptcy Inspector or his assistants or other person appointed by the Court shall not be liable for anything done bona fide pursuant to any warrant of the Court. 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. 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. 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. 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. 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. Composition after Bankruptcy Stay on realisation of estate. (New) 38.—The Court may, on the application of a bankrupt, grant a stay on the realisation of his estate, for such time and under such conditions as it thinks fit, to enable him or any persons acting on his behalf to make an offer of composition to his creditors under section 39 . Offer of composition. (cf. 1857, ss. 149, 150 in pt.; 1872, s. 61) 39.—(1) Where a stay on the realisation of the estate of a bankrupt has been granted under section 38 , the bankrupt shall call a meeting of his creditors before the Court for the purpose of making an offer of composition to them. (2) At least ten days before the meeting a notice of the meeting specifying the precise offer of composition to be made shall be inserted in Iris Oifigiúil and shall also be sent by post to each creditor at his last known address. (3) If an offer of composition is made by or on behalf of the bankrupt and three-fifths in number and value of the creditors voting at the meeting, either in person or by an agent authorised in writing in that behalf, accept the offer or any modification of it, it shall be deemed to be accepted, and when approved by the Court shall be binding on all creditors of the bankrupt. (4) A creditor whose debt is less than £100 shall not be entitled to vote. (5) If for any reason the bankrupt has not filed a statement of his affairs as required by section 19 (c), he shall do so at or before the meeting. (6) Debts may be proved at the meeting. Payment of composition. (New) 40.—(1) Any composition shall be payable— (a) in cash, within one month from the approval by the Court of the offer of composition or within such further time as the Court may allow, or (b) by instalments, all of which shall be secured to the satisfaction of the creditors, or (c) partly in cash and partly by instalments payable or secured as aforesaid. (2) In no case shall any instalment be secured by a bill, note or other security signed by or enforceable against the bankrupt alone. (3) The Court shall have discretion to refuse to approve of an offer payable wholly or partly by instalments if the final instalment is not payable within two years. Discharge of adjudication order. (New) 41.—The Court, on the application of the bankrupt or his personal representatives, shall, on the report of the Official Assignee and in the absence of fraud, discharge the adjudication order— (a) in the case of a composition payable in cash, upon lodgment with the Official Assignee of the necessary amount to pay the composition, expenses, fees, costs, such further sums as the Court may direct and the preferential payments; (b) in the case of a composition payable by instalments which are secured to the satisfaction of the creditors, upon lodgment with the Official Assignee of the completed bills, notes or other securities, the necessary amount to pay expenses, fees, costs, such further sums as the Court may direct and the preferential payments; (c) in the case of a composition payable partly in cash and partly by instalments which are secured to the satisfaction of the creditors, upon lodgment with the Official Assignee of the completed bills, notes or other securities, the necessary amount to pay the cash composition, expenses, fees, costs, such further sums as the Court may direct and the preferential payments. Bankrupt Dying after Adjudication Bankrupt dying after adjudication. (1857, s. 137) 42.—If a bankrupt dies the Court may proceed in the bankruptcy as if he were living. Subsequent Bankruptcy Subsequent bankruptcy. (New) 43.—(1) Where a bankrupt is again adjudicated, all after-acquired property unclaimed by the Official Assignee at the date of the subsequent bankruptcy shall, if claimed by the Official Assignee, vest in him for the credit of the subsequent bankruptcy. (2) Any after-acquired property or the proceeds thereof in the possession of the Official Assignee at the date of the subsequent bankruptcy shall be transferred by the Official Assignee (after deducting his costs and expenses) to the credit of the subsequent bankruptcy. (3) Any surplus arising on the subsequent bankruptcy shall be transferred to the credit of the former bankruptcy. PART III Administration of Property Effect of Adjudication on Bankrupt's Property Vesting of property in Official Assignee. (1857, ss. 267, 268, 273) 44.—(1) Where a person is adjudicated bankrupt, then, subject to the provisions of this Act, all property belonging to that person shall on the date of adjudication vest in the Official Assignee for the benefit of the creditors of the bankrupt. (2) Subject to the provisions of this Act, the title of the Official Assignee to any property which vests in him by virtue of subsection (1) shall not commence at any date earlier than the date of adjudication. (3) The property to which subsection (1) applies includes— (a) all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication; (b) all property which was the subject of any conveyance or transfer which sections 57 , 58 and 59 declare void as against the Official Assignee, subject to the rights of any persons which are preserved by those sections. (4) The property to which subsection (1) applies does not include— (a) property held by the bankrupt in trust for any other person, or (b) any sum which vests in the Official Assignee under section 7 (1) (a) of the Auctioneers and House Agents Act, 1967 , or section 30 (i) of the Central Bank Act, 1971 . (5) Without prejudice to any existing principle or rule of law or equity, established practice or procedure in relation to damages or compensation recovered or recoverable by a bankrupt for personal injury or loss suffered by him, property which is acquired by or devolves on a bankrupt before the discharge or annulment of the adjudication order (in this Act called “after-acquired property”) shall vest in the Official Assignee if and when he claims it. Excepted articles. (1857, ss. 298, 299) 45.—(1) A bankrupt shall be entitled to retain, as excepted articles, such articles of clothing, household furniture, bedding, tools or equipment of his trade or occupation or other like necessaries for himself, his wife, children and dependent relatives residing with him, as he may select, not exceeding in value £2,500 or such further amount as the Court on an application by the bankrupt may allow. (2) Where a bankrupt, after selecting the items constituting the excepted articles, requests the Official Assignee, in writing, not to dispose of the remainder of any such articles as are referred to in subsection (1) the Official Assignee shall not dispose thereof except in accordance with an order of the Court. (3) The Court may, on the application of the bankrupt or the Official Assignee, in relation to the remainder of such articles— (a) postpone the removal and sale thereof; (b) permit them to remain in the use of the bankrupt; (c) at any time, order them to be taken by or on behalf of the Official Assignee and to be sold for the benefit of the creditors. Certificate of vesting of property in Official Assignee. (cf. 1857, s. 269) 46.—(1) Where, according to law, any conveyance of land is required to be registered and such land vests in the Official Assignee under this Part, a certificate under the seal of the Court shall be issued to him as evidence of the vesting and he shall cause the certificate to be registered as soon as may be as if it were a conveyance, and registration of the certificate shall have the like effect to all intents and purposes as registration of a conveyance would have had. (2) The title of any purchaser of any such land for valuable consideration, in good faith and without notice of the adjudication, who had duly registered the conveyance before the registration of the certificate shall not be invalidated by reason of the adjudication unless the certificate is registered within two months after the date of the adjudication. Vesting in Official Assignee of certain money and securities. (New) 47.—Notwithstanding any provision in any other enactment— (a) money in the Post Office Savings Bank or in a trustee savings bank to which a bankrupt is entitled, or (b) securities issued through An Post by the Minister for Finance under his statutory borrowing powers and to which a bankrupt is entitled, shall, on the adjudication of the bankrupt, vest in the Official Assignee in the same manner as any other property. Limitation of Official Assignee's powers in relation to copyright. (New) 48.—Where the property of a bankrupt comprises the copyright in any work or any interest in such copyright and he is liable to pay to the author royalties or a share of the profits in respect thereof— (a) the Official Assignee shall not be entitled to sell or authorise the sale of any copies of the work, or to perform or authorise the performance of the work, except on the terms of paying to the author such sums by way of royalty or share of the profits as would have been payable by the bankrupt, and (b) he shall not be entitled to assign the right or transfer the interest or to grant any interest in the right by licence, except with the consent of the author or of the Court and upon terms which will secure to the author payments by way of royalty or share of the profits at a rate not less than that which the bankrupt was liable to pay. Restrictive clause in agreement or lease. (New) 49.—(1) Every covenant or provision for forfeiture of a lease on the bankruptcy of the lessee shall be void as against the Official Assignee. (2) A clause in a hire purchase agreement which purports to terminate the agreement on the bankruptcy of the hirer shall be void as against the Official Assignee. Execution against debtor's property before adjudication. (cf. 1872, s. 54) 50.—(1) Where goods or a leasehold interest in land belonging to a debtor have been seized under an execution order and sold, or where money has been paid in part or full satisfaction of the execution either to the sheriff or county registrar or to the execution creditor in order to avoid seizure or sale under such execution, the sheriff, county registrar or execution creditor shall retain the proceeds of sale or the money so paid, for a period of twenty-one days. (2) If within that period the sheriff, county registrar or execution creditor receives notice of the adjudication of the debtor, he shall surrender the property, or pay over the proceeds of sale thereof or any money paid in satisfaction of the execution, to the Official Assignee who shall be entitled to retain the property, proceeds or money, as the case may be, as against the execution creditor. (3) An execution levied by seizure of any such property belonging to the debtor shall not be invalid by reason only of its being an act of bankruptcy and a person who purchases the property in good faith under a sale by the sheriff or county registrar shall, as against the Official Assignee, acquire a good title thereto. (4) Where a sheriff or county registrar, without notice of the adjudication of the debtor, pays the proceeds of sale or other money retained by him pursuant to subsection (1) to the execution creditor after the expiration of twenty-one days, he shall not be liable to the Official Assignee in respect of the payment. (5) Where property is surrendered or proceeds of sale or other money paid over to the Official Assignee, the costs of the execution shall be a first charge thereon and the Official Assignee may sell the whole or part of the property for the purpose of satisfying the charge. Priority of judgment mortgage. (1857, s. 331) 51.—(1) A judgment creditor who registers an affidavit of his judgment in accordance with sections 6 and 7 of the Judgment Mortgage (Ireland) Act, 1850, shall not, by reason of such registration, be entitled to any priority or preference over simple contract creditors in the event of the person against whom such affidavit is registered being adjudicated bankrupt, unless the affidavit is registered at least three months before the date of the adjudication. (2) The reference in section 284 (2) of the Companies Act, 1963 , to section 331 of the Irish Bankrupt and Insolvent Act, 1857 (repealed by this Act) shall be construed as a reference to subsection (1) and accordingly the reference in the said section 284 (2) to the filing of the petition shall be read as a reference to the date of the adjudication. Order to put purchaser in possession. (1872, s. 75) 52.—Where land belonging to a bankrupt or arranging debtor has been sold under the provisions of this Act or by or under the direction of the Court, the Court may, on the application of the purchaser, issue an order directing the appropriate sheriff or county registrar to put the purchaser into possession of all the land not in the occupation of lessees, under-lessees or tenants, subject to whose interests the sale has been made and who have attorned to the purchaser within a time to be limited in the order, and the order shall be executed in like manner as an order for the delivery of possession. Permission to mortgagee to bid at sale. (1857, s. 316) 53.—The mortgagee of any property of a bankrupt or arranging debtor may, with the leave of the Court, bid and purchase at the sale of the property. Discharge of persons delivering property, etc., to Official Assignee. (cf. 1857, s.281) 54.—A person— (a) from whom the Official Assignee recovers any property of a bankrupt, or (b) who, without legal proceedings, in good faith delivers up to the Official Assignee possession of any such property, or (c) who pays any debt owed to a bankrupt and claimed by the Official Assignee, shall, notwithstanding that the adjudication is subsequently annulled or discharged, be released from all claims by the bankrupt in respect of such property or debt. Title to property sold not to be invalidated. (1857, s. 323) 55.—The title to any property sold in bankruptcy shall not be invalidated by the bankrupt or any person claiming under him by reason only of any defect in any proceedings under this Act. Disclaimer of onerous property. (1872, ss. 97 and 98; 33/1963, s. 290) 56.—(1) Subject to subsections (2) and (5), where any of the property (other than after-acquired property) of a bankrupt consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property which is unsaleable or not readily saleable by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the Official Assignee, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, may, with the leave of the Court and subject to the provisions of this section, by writing signed by him, at any time within twelve months after the date of adjudication or such extended period as may be allowed by the Court, disclaim the property. (2) Where any such property as aforesaid has not come to the knowledge of the Official Assignee within one month after the date of the adjudication, the power under this section of disclaiming the property may be exercised at any time within twelve months after he has become aware thereof or such extended period as may be allowed by the Court. (3) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the Official Assignee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the Official Assignee from liability, affect the rights or liabilities of any other person. (4) The Court, before or on granting leave to disclaim, may require the Official Assignee to give such notices to persons interested and impose such terms as a condition of granting leave, and make such other order in the matter as the Court thinks just. (5) The Official Assignee shall not be entitled to disclaim any property under this section in any case where an application in writing has been made to him by any persons interested in the property requiring him to decide whether he will or will not disclaim, and the Official Assignee has not, within a period of twenty-eight days after the receipt of the application or such further period as may be allowed by the Court, given notice to the applicant that he intends to apply to the Court for leave to disclaim; and, in the case of a contract, if the Official Assignee, after such application as aforesaid, does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it. (6) The Court may, on the application of any person who is, as against the Official Assignee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise as the Court thinks just, and any damages payable under the order to any such person shall be deemed to be a debt proved and admitted in the bankruptcy. (7) Subject to subsection (8), the Court may, on an application by any person who either claims any interest in any disclaimed property or is under any liability not discharged by this Act in respect of any disclaimed property and on hearing any such persons as it thinks fit, make an order for the vesting of the property in or the delivery of the property to any person entitled thereto, or to whom it may seem just that the property should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the Court may think just, and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose. (8) Where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee by demise, except upon the terms of making that person— (a) subject to the same liabilities and obligations as those to which the bankrupt was subject under the lease in respect of the property at the date of the adjudication; or (b) if the Court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date; and in either event (if the case so requires), as if the lease had comprised only the property comprised in the vesting order, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property and, if there is no person claiming under the bankrupt who is willing to accept an order upon such terms, the Court shall have power to vest the estate and interest of the bankrupt in the property in any person liable either personally or in a representative character, and either alone or jointly with the bankrupt, to perform the lessee's covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the bankrupt. (9) Any person damaged by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the amount of the damages, and may accordingly prove the amount as a debt in the bankruptcy. Fraudulent and Voluntary Conveyances Avoidance of fraudulent preferences. (1872, s. 53; 33/1963, sch. 11, para. 1.) 57.—(1) Every conveyance or transfer of property or charge made thereon, every payment made, every obligation incurred and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own money in favour of any creditor or of any person in trust for any creditor, with a view to giving such creditor, or any surety or guarantor for the debt due to such creditor, a preference over the other creditors, shall, if the person making, incurring, taking or suffering the same is adjudicated bankrupt within six months after the date of making, incurring, taking or suffering the same, be deemed fraudulent and void as against the Official Assignee; but this section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt. (2) (a) Where a person is adjudicated bankrupt and anything made or done is void under subsection (1) or was void under the corresponding provisions of the law in force immediately before the commencement of this Act as a fraudulent preference of a person interested in property mortgaged or charged to secure the bankrupt's debt, then (without prejudice to any rights or liabilities arising apart from this section) the person preferred shall be subject to the same liabilities and shall have the same rights as if he had undertaken to be personally liable as surety for the debt to the extent of the charge on the property or the value of his interest, whichever is the less. (b) The value of the said person's interest shall be determined as at the date of the transaction constituting the fraudulent preference, and shall be determined as if the interest were free of all encumbrances other than those to which the charge for the bankrupt's debt was then subject. (c) On any application made to the Court in relation to any payment on the ground that the payment was a fraudulent preference of a surety or guarantor, the Court shall have jurisdiction to determine any questions relating to the payment arising between the person to whom the payment was made and the surety or guarantor, and to grant relief in respect thereof notwithstanding that it is not necessary so to do for the purposes of the bankruptcy, and for that purpose may give leave to bring in the surety or guarantor as a third party as in the case of an action for the recovery of the sum paid. (d) Paragraph (c) shall apply, with the necessary modifications, in relation to transactions other than the payment of money as it applies to payments. Avoidance of certain transactions. (New) 58.—(1) If within three months before he is adjudicated bankrupt a debtor commits an act of bankruptcy and thereafter either sells any of his property at a price which, in the opinion of the Court, is substantially below its market value or enters into or is a party to any other transaction which, in the opinion of the Court, has the effect of substantially reducing the sum available for distribution to the creditors, such transaction shall be void as against the Official Assignee, unless the transaction was bona fide entered into and the other party had not at the time of the transaction notice of any prior act of bankruptcy committed by the bankrupt. (2) Subsection (1) shall not affect the rights of any person making title in good faith and for valuable consideration through or under a person (other than the bankrupt) who is party to a transaction mentioned therein. (3) Subsection (1) shall not apply to any transaction mentioned in section 57 (1) or 59 . Avoidance of certain settlements. (1857, s. 314; 1872, s. 52) 59.—(1) Any settlement of property, not being a settlement made before and in consideration of marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, shall— (a) if the settlor is adjudicated bankrupt within two years after the date of the settlement, be void as against the Official Assignee, and (b) if the settlor is adjudicated bankrupt at any subsequent time within five years after the date of the settlement, be void as against the Official Assignee unless the parties claiming under the settlement prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement and that the interest of the settlor in such property passed to the trustee of such settlement on the execution thereof. (2) A covenant or contract made by any person (in this section called the settlor) in consideration of his or her marriage, either for the future payment of money for the benefit of the settlor's spouse or children, or for the future settlement, on or for the settlor's spouse or children, of property wherein the s …