Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

By decision no. 54/02/2011 of the Athens Magistrates' Court, an application was rejected in which the applicant stated that she did not have commercial status and, for that reason, lacked bankruptcy capacity, and that she had fallen, without fraud, into permanent inability to pay her overdue debts to the creditors included in the application. With that application she requested judicial regulation of the debts so that the applicant could be released from them and so that her main residence would be excluded from liquidation. According to the decision of the Magistrates' Court, on the basis of article 1 paragraph 1 of Law 3869/2010, natural persons who do not have bankruptcy capacity, meaning that they are not merchants, and who have fallen, without fraud, into permanent inability to pay their overdue debts (debtors), are entitled to submit to the competent court the application provided for in paragraph 1 of article 4 for the regulation of their debts and discharge. Within the meaning of this provision, the debtor's lack of bankruptcy capacity is a substantive condition for the possibility of being subject to the provisions of Law 3869/2010. Bankruptcy capacity is held by persons who acquired commercial status under the subjective (substantive) system, according to article 1 of the Commercial Law, provided that they habitually carry out commercial acts as a profession. The acquisition of commercial status is not precluded by the parallel exercise, alongside commercial acts, of another (non-commercial) profession or another capacity. In the present case it was held that the applicant's signing, as guarantor, of credit agreements (bank loans) of a limited partnership, because it was done habitually and for profit, conferred on her commercial status, by reason of which all her transactions are presumed to have been made for the sake of that commerce (on the basis of article 8 paragraph 2 of the decree on the jurisdiction of the Commercial Courts). Therefore the applicant, a retired bank employee, has bankruptcy capacity and did not invoke the loss of her commercial status in any manner. Consequently, in view of the facts proved, the creditor's relevant argument must be accepted as substantively well founded, and the application under examination must be rejected because the substantive condition of the applicant's lack of bankruptcy capacity is not met.