Bankruptcy Act 1988


Number 27 of 1988


BANKRUPTCY ACT 1988

REVISED

Updated to 1 October 2018


This Revised Act is an administrative consolidation of the Bankruptcy Act 1988. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including Mental Health (Renewal Orders) Act 2018 (23/2018), enacted 3 October 2018, and all statutory instruments up to and including Civil Liability (Amendment) Act 2017 (Parts 1, 2 and 3) (Commencement) Order 2018 (S.I. No. 377 of 2018), made 25 September 2018, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 27 of 1988


BANKRUPTCY ACT 1988

REVISED

Updated to 1 October 2018


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was passed.

Related legislation

Bankruptcy Acts 1988 to 2015: this Act is one of a group of Acts included in this collective citation ( Bankruptcy (Amendment) Act 2015 (60/2015), s. 16(2)). The Acts in this group are:

Bankruptcy Act 1988 (27/1988)

Euro Changeover (Amounts) Act 2001 (16/2001), s. 7 and s. 9(5)

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), part 7

Bankruptcy (Amendment) Act 2015 (60/2015)

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1983, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

Data Protection Act 2018 (7/2018)

Civil Liability (Amendment) Act 2017 (30/2017)

Bankruptcy (Amendment) Act 2015 (60/2015)

Marriage Act 2015 (35/2015)

Companies Act 2014 (38/2014)

Protected Disclosures Act 2014 (14/2014)

Companies (Miscellaneous Provisions) Act 2013 (46/2013)

Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013)

Central Bank (Supervision and Enforcement) Act 2013 (26/2013)

Finance (Local Property Tax) Act 2012 (52/2012)

Personal Insolvency Act 2012 (44/2012)

Industrial Relations (Amendment) Act 2012 (32/2012)

Protection of Employees (Temporary Agency Work) Act 2012 (13/2012)

Property Services (Regulation) Act 2011 (40/2011)

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011)

Criminal Justice Act 2011 (22/2011)

Finance Act 2011 (6/2011)

Value-Added Tax Consolidation Act 2010 (31/2010)

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010)

Fines Act 2010 (8/2010)

National Asset Management Agency Act 2009 (34/2009)

Land And Conveyancing Law Reform Act 2009 (27/2009)

Finance (No. 2) Act 2008 (25/2008)

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008)

Criminal Justice (Mutual Assistance) Act 2008 (7/2008)

Foyle and Carlingford Fisheries Act 2007 (17/2007)

International Criminal Court Act 2006 (30/2006)

Employment Permits Act 2006 (16/2006)

Social Welfare Consolidation Act 2005 (26/2005)

Finance Act 2005 (5/2005)

Industrial Relations (Miscellaneous Provisions) Act 2004 (4/2004)

Courts and Court Officers Act 2002 (15/2002)

Carers Leave Act 2001 (19/2001)

Euro Changeover (Amounts) Act 2001 (16/2001)

National Training Fund Act 2000 (41/2000)

National Minimum Wage Act 2000 (5/2000)

Parental Leave Act 1998 (30/1998)

Employment Equality Act 1998 (21/1998)

Taxes Consolidation Act 1997 (39/1997)

Proceeds of Crime Act 1996 (30/1996)

Netting of Financial Contracts Act 1995 (25/1995)

Investment Intermediaries Act 1995 (11/1995)

Adoptive Leave Act 1995 (2/1995)

Maternity Protection Act 1994 (34/1994)

Investment Limited Partnerships Act 1994 (24/1994)

Criminal Justice Act 1994 (15/1994)

Industrial Training (Apprenticeship Levy) Act 1994 (3/1994)

Protection of Employees (Employers’ Insolvency) Act 1984 (21/1984)

Foyle Fisheries Act 1952 (5/1952)

Industrial Relations Act 1946 (26/1946)

All Acts up to and including Mental Health (Renewal Orders) Act 2018 (23/2018), enacted 3 October 2018, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No. 375 of 2017)

Bankruptcy (Amendment) Act 2015 (Commencement) (No. 2) Order 2016 (S.I. No. 253 of 2016)

National Vehicle and Driver File (Access) (No. 2) Regulations 2015 (S.I. No. 287 of 2015)

National Vehicle and Driver File (Access) Regulations 2015 (S.I. No. 64 of 2015)

Protected Disclosures Act 2014 (Section 7(2)) Order 2014 (S.I. No. 339 of 2014)

Personal Insolvency Act 2012 (Prescribed Fees in Bankruptcy Matters) Regulations 2013 (S.I. No. 465 of 2013)

Bankruptcy Act 1988 (Official Assignee Accounts and Related Matters) Regulations 2013 (S.I. No. 464 of 2013)

European Union (Occupation of Road Transport Operator) Regulations 2011 (S.I. No. 697 of 2011)

Prison Rules 2007 (S.I. No. 252 of 2007)

European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007)

Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001)

European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002)

Criminal Justice Act 1994 (Section 46(6)) Regulations 1996 (S.I. No. 343 of 1996)

All statutory instruments up to and including Civil Liability (Amendment) Act 2017 (Parts 1, 2 and 3) (Commencement) Order 2018 (S.I. No. 377 of 2018), made 25 September 2018, were considered in the preparation of this revision.


Number 27 of 1988


BANKRUPTCY ACT 1988

REVISED

Updated to 1 October 2018


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 on debtor’s petition.

16.

Cause shown against adjudication.

17.

Notice of adjudication and statutory sitting.

18.

Creditors' assignee.

18A.

Revenue Commissioners to furnish certain information to Official 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.

44A.

Pensions in Bankruptcy.

44B.

Excessive pension contributions by bankrupt.

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.

The Official Assignee.

60A.

Office of Official Assignee — Transfer of staff.

60B.

Delegation of functions of Official Assignee.

60C.

Deputy for Official Assignee.

60D.

Transfer of records to Insolvency Service.

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.

65A.

Cesser of section 65.

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.

Automatic discharge from bankruptcy.

85A.

Objection to automatic discharge from bankruptcy.

85B.

Entitlement to discharge from bankruptcy.

85C.

Annulment of adjudication in bankruptcy.

85D.

Bankruptcy payment orders.

86.

Surplus.

PART IV

Arrangements under Control of Court

86A.

Prohibition on presentation of petition for arrangement under section 87

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.

Arranging publication of notice 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.

140A.

Registration of judgments given in insolvency proceedings.

140B.

Publication in relation to insolvency proceedings.

140C.

Provision of certain documents to Official Assignee.

140D.

Restriction of right of access to personal data in certain circumstances.

141.

Publication of certain notices to be evidence.

142.

Acting in aid of other courts.

143.

Alteration of monetary limits.

144.

Regulations and orders.

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

REVISED

Updated to 1 October 2018


AN ACT TO CONSOLIDATE WITH AMENDMENTS THE LAW RELATING TO BANKRUPTCY AND TO PROVIDE FOR RELATED MATTERS. [13 th July, 1988]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations:

Modifications (not altering text):

C1

Application of Act extended (3.01.2018) by European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No. 375 of 2017), reg. 148(11), in effect as per reg. 1(2).

Winding up of investment firm or market operator by the Court

148. ...

(2) Notwithstanding section 569 of the Companies Act 2014, the Bank, by presenting a petition, may apply to the Court to have an investment firm, data reporting service provider or the market operator of a regulated market wound up, under Chapter 2 of Part 11 of that Act, on any of the following grounds:

(a) the investment firm or market operator is unable or, in the opinion of the Bank, may be unable to meet its obligations to its clients or creditors;

(b) the authorisation of the investment firm or market operator has been withdrawn or revoked and the firm or operator has ceased to carry on business as an investment firm or to operate a regulated market;

(c) the Bank considers that it is in the interest of the proper and orderly regulation and supervision of investment firms or regulated markets or is necessary for the protection of investors that the investment firm or the market operator of the regulated market be wound up;

(d) the investment firm or market operator has failed to comply with any direction given by the Bank under these Regulations.

...

(11) In the case of an individual that is an authorised investment firm or is the market operator of a regulated market, the Bank may apply by petition to the Court for an adjudication of bankruptcy within the meaning of the Bankruptcy Act 1988 (No. 27 of 1988) and the Bankruptcy Act 1988 shall apply as if the grounds specified in paragraph (2) (a) to (d) were acts of bankruptcy (within the meaning of the Bankruptcy Act 1988).

C2

Function to be performed by Official Assignee in Bankruptcy in the Insolvency Service of Ireland specified (23.07.2014) by Protected Disclosures Act 2014 (Section 7(2)) Order 2014 (S.I. No. 339 of 2014), reg. 2 and sch. ref. no. 33.

2. Each person specified in column (2) of the Schedule is hereby prescribed to be the recipient of disclosures of relevant wrongdoings falling within the description of matters specified in column (3) of the Schedule in relation to the person.

Schedule

Reference Number (1)

Prescribed Person (2)

Description of matters in respect of which the person is prescribed(3)

...

...

...

33

Director of the Insolvency Service of Ireland (in respect of the matters specified in paragraph (a) of column (3)) Official Assignee in Bankruptcy in the Insolvency Service of Ireland (in respect of the matters specified in paragraph (b) of column (3).

(a) ...

(b) All matters relating to the administration of bankruptcy estates under the Bankruptcy Act 1988 (No.27 of 1988).

...

...

...

C3

Application of Act restricted (1.09.2008) by Criminal Justice (Mutual Assistance) Act 2008 (7/2008), s. 40(1), S.I. No. 338 of 2008.

Bankruptcy of defendant, etc.

40.— (1) Where a person who holds realisable property is adjudicated bankrupt—

( a) property for the time being subject to a freezing co-operation order made before the order adjudicating the person bankrupt, and

( b) any proceeds of property realised by virtue of section 36 , for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act 1988.

(2) Where a person has been adjudicated bankrupt, the powers of the High Court under section 36 or of a receiver appointed under that section shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift—

( a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing co-operation order, and

( b) any decision as to whether it is void made under any of those sections after the discharge of the freezing co-operation order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1 January 1989, this section has effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

C4

Application of Act extended (1.11.2007) by European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007), reg. 150(2)(a)-(d) and (11), in effect as per reg. 1(2).

Winding-up on application to Court

150. In this Regulation:

“committee of inspection” means a committee of inspection appointed under section 23 of the Companies Act 1963;

“investment firm” includes a former investment firm;

“market operator” includes a former market operator.

(2) Notwithstanding Regulation 215 of the Companies Act, 1963, the Bank, by presenting a petition, may apply to the Court to have an investment firm or the market operator of a regulated market wound up on any of the following grounds:

(a) the investment firm or market operator is unable or, in the opinion of the Bank, may be unable to meet its obligations to its clients or creditors;

(b) the authorisation of the investment firm or market operator has been withdrawn or revoked and the firm or operator has ceased to carry on business as an investment firm or to operate a regulated market;

(c) the Bank considers that it is in the interest of the proper and orderly regulation and supervision of investment firms or regulated markets or is necessary for the protection of investors that the investment firm or the market operator of the regulated market be wound up;

(d) the investment firm or market operator has failed to comply with any direction given by the Bank under these Regulations.

...

(11) In the case of an individual that is an authorised investment firm or is the market operator of a regulated market, the Bank may apply by petition to the Court for an adjudication of bankruptcy within the meaning of the Bankruptcy Act, 1988, and the Bankruptcy Act, 1988 shall apply as if the grounds specified in paragraph (2)(a) to (d) were acts of bankruptcy (within the meaning of the Bankruptcy Act, 1988).

C5

Application of Act restricted (31.10.2006) by International Criminal Court Act 2006 (30/2006), s. 44, commenced on enactment.

Bankruptcy of defendant, etc.

44.— (1) Where a person who holds realisable property is adjudicated bankrupt, the following property is excluded from the property of the bankrupt for the purposes of the Act of 1988:

( a) any property for the time being subject to—

(i) a freezing order made before the order of adjudication, or

(ii) an ICC order which is the subject of an enforcement order made before the order of adjudication;

( b) any property realised by virtue of section 38 (11) or 41 (2) and for the time being in the hands of a receiver.

(2) Where a person was adjudicated bankrupt before the passing of this Act, the powers of the High Court or a receiver under either of those sections shall not be exercised in relation to property of the bankrupt for the purposes of the Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Part—

( a) any decision as to whether the gift is void shall not be made under section 57, 58 or 59 of the Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing order or an enforceable ICC order, and

( b) any such decision made after the discharge of the freezing order or enforceable ICC order shall take into account any realisation under this Part of property held by the person to whom the gift was made.

(4) Where a petition in bankruptcy was presented, or an adjudication in bankruptcy made, before 1 January 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy in force before that date.

C6

Application of Act restricted (26.11.1996) by Criminal Justice Act 1994 (Section 46(6)) Regulations 1996 (S.I. No. 343 of 1996), reg. 28.

Bankruptcy of defendant, etc.

28. (1) Where a person who holds realisable property is adjudicated bankrupt—

(a) property for the time being subject to a restraint order made before the order adjudicating him bankrupt, and

(b) any proceeds of property realised by virtue of section 20(5) or (6) or 24 (7) of this Act, for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988 .

(2) Where a person has been adjudicated bankrupt, the powers conferred on the High Court or on a receiver by section 20 or 24 of this Act shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Act—

(a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a restraint order, and

(b) any decision as to whether it is void made under any of those sections after the discharge of the restraint order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1st January, 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

C7

Application of Act restricted (4.08.1996) by Proceeds of Crime Act 1996 (30/1996), s. 11, commenced on enactment.

Bankruptcy of respondent, etc.

11. (1) Where a person who is in possession or control of property is adjudicated bankrupt, property subject to an interim order, an interlocutory order, or a disposal order, made before the order adjudicating the person bankrupt, is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988.

(2) Where a person has been adjudicated bankrupt, the powers conferred on the Court by section 2 or 3 shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before the 1st day of January, 1989, this section shall have effect with the modification that, for the references in subsections (1) and (2) to the property of the bankrupt for the purposes of the Act aforesaid, there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

C8

Application of Act restricted (1.08.1995) by Netting of Financial Contracts Act 1995 (25/1995), s. 4, commenced on enactment.

Enforceability of netting, set off, guarantees and collateral in relation to netting and master netting agreements.

4. (1) Notwithstanding anything contained in any rule of law relating to bankruptcy, insolvency or receivership, or in the Companies Acts or the Bankruptcy Act, 1988, the provisions—

( a) relating to netting, the set off of money provided by way of security, the enforcement of a guarantee and the enforcement and realisation of collateral and the set off of the proceeds thereof, as contained within a netting agreement or a guarantee provided for in such an agreement shall be legally enforceable against a party to the agreement and, where applicable, against a guarantor or other person providing security, and

( b) relating to set off of the net amounts due under netting agreements, the set off of money provided by way of security, the enforcement of a guarantee and the enforcement and realisation of collateral and the set off of the proceeds thereof, as contained within a master netting agreement or a guarantee provided for in such an agreement shall be legally enforceable against a party to the agreement and, where applicable, against a guarantor or other person providing security.

(2) Nothing in subsection (1) shall—

( a) prevent the application of any enactment or rule of law which would prevent the legal enforceability of netting, set off, enforcement and realisation within the meaning of subsection (1) in any particular case, on the grounds of fraud or misrepresentation or on any similar ground and, in particular, by reason of the application of—

(i) sections 57, 58 and 59 of the Bankruptcy Act, 1988,

(ii) section 286 of the Companies Act, 1963, and

(iii) section 139 of the Companies Act, 1990,

or

( b) permit the enforceability of netting, set off, enforcement and realisation under subsection (1) if any provision of an agreement between the two parties concerned would make netting, set off, enforcement and realisation void whether because of fraud or misrepresentation or any similar ground.

(3) Section II of the Statute of Frauds, 1695, shall not apply in relation to financial contracts.

(4) For the avoidance of doubt a financial contract shall not be and shall be deemed never to have been void or unenforceable by reason of the Gaming and Lotteries Acts, 1956 to 1986.

C9

Application of Act extended (1.08.1995) by Investment Intermediaries Act 1995 (11/1995), s. 22(1)(a)-(d) and (9), S.I. No. 207 of 1995.

Winding-up on application to Court.

22. (1) Notwithstanding section 215 of the Companies Act, 1963, a supervisory authority may, by presenting a petition, apply to the Court to have an authorised investment business firm or former authorised investment business firm wound up on any of the following grounds, namely that—

( a) an authorised investment business firm or former authorised investment business firm is or, in the opinion of the supervisory authority, may be unable to meet its obligations to its clients or creditors,

( b) the authorisation of the investment business firm has been revoked and the former authorised investment business firm has ceased to operate as an investment business firm,

( c) the supervisory authority considers that it is in the interest of the proper and orderly regulation and supervision of investment business firms or is necessary for the protection of investors that the authorised investment business firm or former authorised investment business firm be wound up,

( d) an authorised investment business firm or a former authorised investment business firm has failed to comply with any direction given by the supervisory authority under this Act.

...

(9) In the case of an authorised investment business firm or a former authorised investment business firm which is constituted as an individual person, the supervisory authority may apply by petition to the Court for an adjudication of bankruptcy within the meaning of the Bankruptcy Act, 1988, and the Bankruptcy Act, 1988 shall apply as if the grounds specified in subsection (1) (a) to (d) of this section were acts of bankruptcy (within the meaning of the Bankruptcy Act, 1988).

C10

Application of Act restricted (14.11.1994) by Criminal Justice Act 1994 (15/1994), s. 28, S.I. No. 324 of 1994.

Bankruptcy of defendant, etc.

28. (1) Where a person who holds realisable property is adjudicated bankrupt—

( a) property for the time being subject to a restraint order made before the order adjudicating him bankrupt, and

( b) any proceeds of property realised by virtue of section 20 (5) or (6) or 24 (7) of this Act, for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988.

(2) Where a person has been adjudicated bankrupt, the powers conferred on the High Court or on a receiver by section 20 or 24 of this Act shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Act—

( a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when—

(i) proceedings for an offence in respect of which a confiscation order might be made have been instituted against him and have not been concluded, or

(ii) an application has been made in respect of the defendant under section 7, 8, 13 , or 18 of this Act and has not been concluded, or

(iii) property of the person to whom the gift was made is subject to a restraint order,

and

( b) any decision as to whether it is void made under any of those sections after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by the person to whom the gift was made.

(4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1st January, 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

Editorial Notes:

E1

Prospective affecting provision: aquaculture licence regarded as property forming part of bankrupt’s estate for purposes of Act if the holder of the licence is adjudicated bankrupt by Foyle Fisheries Act 1952 (5/1952), s. 53K, as inserted by Foyle and Carlingford Fisheries Act 2007 (17/2007), s. 4, not commenced as of date of revision.

E2

Office of the Official Assignee in Bankruptcy prescribed for purposes of access to the National Vehicle and Driver file records established under Finance Act 1993 (13/1993), s. 60(3) and Road Traffic Act 1961 (24/1961), s. 22(4) (9.07.2015) by National Vehicle and Driver File (Access) (No. 2) Regulations 2015 (S.I. No. 287 of 2015), reg. 2 and sch. ref. 15.

E3

Insolvency Service required to keep accounts relating to functions of the Official Assignee under Act by Personal Insolvency Act 2012 (44/2012), s. 17(2)(b) as substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 39, S.I. No. 463 of 2013.

E4

Obligation imposed on a person who holds a specified position with an operator to inform the operator in writing in the event that he or she is or has been convicted of an offence under Act (4.12.2011) by European Union (Occupation of Road Transport Operator) Regulations 2011 (S.I. No. 697 of 2011), reg. 8 and sch.

E5

Power granted to Minister for Transport, Tourism and Sport, in determining whether an operator has satisfied or continues to satisfy the requirement of good repute, to consider whether or not the operator or a person who holds a specified position with the operator has, within the previous 10 years, been convicted of an offence under Act (4.12.2011) by European Union (Occupation of Road Transport Operator) Regulations 2011 (S.I. No. 697 of 2011), reg. 6 and sch.

E6

Obligation imposed on prison officers to inform Governor in the event of proceedings under Act being brought in relation to the officer (1.10.2007) by Prison Rules 2007 (S.I. No. 252 of 2007), rl. 96(c), in effect as per rl. 1(2).

E7

Previous affecting provision: Office of the Official Assignee in Bankruptcy prescribed for purposes of access to the National Vehicle and Driver file records established under Finance Act 1993 (13/1993), s. 60 (19.02.2015) by National Vehicle and Driver File (Access) Regulations 2015 (S.I. No. 64 of 2015); revoked (9.07.2015) by National Vehicle and Driver File (Access) (No. 2) Regulations 2015 (S.I. No. 287 of 2015), reg. 3.