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Bankruptcy (Scotland) Act 1985

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  1. Introductory Text

  2. Administration of bankruptcy

    1. 1. Accountant in Bankruptcy.

    2. 1A.Supervisory functions of the Accountant in Bankruptcy.

    3. 1B.Performance of certain functions of the Accountant in Bankruptcy.

    4. 1C.Directions.

    5. 2.Appointment and functions of the trustee in the sequestration

    6. 3.Functions of the trustee

    7. 4. Commissioners.

  3. Petitions for sequestration

    1. 5. Sequestration of the estate of living or deceased debtor.

    2. 5A.Debtor applications by low income, low asset debtors

    3. 5B.Certificate for sequestration

    4. 6. Sequestration of other estates.

    5. 6A.Petition for sequestration of estate: provision of information

    6. 6B.Debtor application: provision of information

    7. 7. Meaning of apparent insolvency.

    8. 8. Further provisions relating to presentation of petitions.

    9. 8A.Further provisions relating to debtor applications

    10. 9. Jurisdiction.

    11. 10.Duty to notify existence of concurrent proceedings for sequestration or analogous remedy

    12. 10A.Powers in relation to concurrent proceedings for sequestration or analogous remedy

    13. 11. Creditor’s oath.

  4. Award of sequestration and appointment and resignation of interim trustee

    1. 12. When sequestration is awarded.

    2. 13.Resignation, removal etc. of interim trustee.

    3. 13A.Termination of interim trustee's functions where not appointed as trustee

    4. 13B.Termination of Accountant in Bankruptcy's functions as interim trustee where not appointed as trustee

    5. 14.Registration of warrant or determination of debtor application

    6. 15. Further provisions relating to award of sequestration.

    7. 16. Petitions for recall of sequestration.

    8. 17. Recall of sequestration.

  5. Initial stages of sequestration

    1. 18. Interim preservation of estate.

    2. 19.Statement of assets and liabilities etc.

    3. 20. Trustee’s duties on receipt of list of assets and liabilities.

    4. 20A.Statutory meeting.

  6. Statutory meeting of creditors and trustee vote

    1. 21. Calling of statutory meeting.

    2. 21A.Calling of statutory meeting

    3. 21B.Procedure where no statutory meeting called.

    4. 22. Submission of claims for voting purposes at statutory meeting.

    5. 23.Proceedings at statutory meeting before trustee vote

    6. 23A.Summary administration.

    7. 24.Trustee vote

    8. 25.Appointment of replacement trustee

    9. 25A.Appointment of permanent trustee in certain cases.

    10. 26.Provisions relating to termination of original trustee's functions

    11. 26A.Accountant in Bankruptcy to account for intromissions.

    12. 27.Discharge of original trustee

  7. Replacement of trustee

    1. 28.Resignation and death of trustee

    2. 28A.Replacement of trustee acting in more than one sequestration

    3. 29.Removal of trustee and trustee not acting

  8. Election, resignation and removal of commissioners

    1. 30. Election, resignation and removal of commissioners.

  9. Vesting of estate in trustee

    1. 31. Vesting of estate at date of sequestration.

    2. 31ZA.Proceedings under EC Regulation: modified definition of “estate”

    3. 31A. Property subject to restraint order

    4. 31B. Property in respect of which receivership or administration order is made

    5. 31C. Property subject to certain orders where confiscation order discharged or quashed

    6. 32. Vesting of estate, and dealings of debtor, after sequestration.

    7. 33. Limitations on vesting.

  10. Safeguarding of interests of creditors of insolvent persons

    1. 34. Gratuitous alienations.

    2. 35. Recalling of order for payment of capital sum on divorce.

    3. 36. Unfair preferences.

    4. 36A. Recovery of excessive pension contributions.

    5. 36B. Orders under section 36A.

    6. 36C. Orders under section 36A: supplementary.

    7. 36D. Recovery of excessive contributions in pension-sharing cases.

    8. 36E. Recovery orders.

    9. 36F. Recovery orders: supplementary.

  11. Effect of sequestration on diligence

    1. 37. Effect of sequestration on diligence.

  12. Administration of estate by trustee

    1. 38.Taking possession of estate by trustee

    2. 39. Management and realisation of estate.

    3. 39A.Debtor's home ceasing to form part of sequestrated estate

    4. 40.Power of trustee in relation to the debtor's family home

    5. 41. Protection of rights of spouse against arrangements intended to defeat them.

    6. 41A.Protection of rights of civil partner against arrangements intended to defeat them

    7. 42.Contractual powers of trustee

    8. 43.Money received by trustee

    9. 43A.Debtor's requirement to give account of state of affairs

  13. Examination of debtor

    1. 44. Private examination.

    2. 45. Public examination.

    3. 46. Provisions ancillary to sections 44 and 45.

    4. 47. Conduct of examination.

  14. Submission and adjudication of claims

    1. 48.Submission of claims to trustee

    2. 49. Adjudication of claims.

  15. Entitlement to vote and draw dividend

    1. 50. Entitlement to vote and draw dividend.

  16. Distribution of debtor’s estate

    1. 51. Order of priority in distribution.

    2. 52. Estate to be distributed in respect of accounting periods.

    3. 53. Procedure after end of accounting period.

    4. 53A.Modification of procedure under section 53 where Accountant in Bankruptcy is trustee

  17. Discharge of debtor

    1. 54.Automatic discharge of debtor

    2. 55. Effect of discharge under section 54.

    3. 56. Discharge on Composition.

  18. Bankruptcy restrictions orders and undertakings

    1. 56A.Bankruptcy restrictions order

    2. 56B.Grounds for making order

    3. 56C.Application of section 67(9)

    4. 56D.Timing of application for order

    5. 56E.Duration of order and application for annulment

    6. 56F.Interim bankruptcy restrictions order

    7. 56G.Bankruptcy restrictions undertaking

    8. 56H.Bankruptcy restrictions undertakings: application of section 67(9)

    9. 56J.Effect of recall of sequestration

    10. 56K.Effect of discharge on approval of offer of composition

  19. Discharge of trustee

    1. 57.Discharge of trustee

    2. 58. Unclaimed dividends.

    3. 58A.Discharge of Accountant in Bankruptcy

  20. Voluntary trust deeds for creditors

    1. 59. Voluntary trust deeds for creditors.

    2. 59A.Petition for conversion into sequestration

    3. 59B.Contents of affidavit

    4. 59C.Power of sheriff

  21. Miscellaneous and supplementary

    1. 60. Liabilities and rights of co-obligants.

    2. 60A.Member State liquidator deemed creditor

    3. 60B.Trustee’s duties concerning notices and copies of documents

    4. 61. Extortionate credit transactions.

    5. 62. Sederunt book and other documents.

    6. 63. Power to cure defects in procedure.

    7. 64.Debtor to co-operate with trustee

    8. 65. Arbitration and compromise.

    9. 66. Meetings of creditors and commissioners.

    10. 67. General offences by debtor etc.

    11. 68. Summary proceedings.

    12. 69.Outlays of insolvency practitioner in actings as interim trustee or trustee

    13. 69A.Fees for the Accountant in Bankruptcy.

    14. 70. Supplies by utilities.

    15. 71. Edinburgh Gazette.

    16. 71A.Further duty of Accountant in Bankruptcy

    17. 71B.Disqualification provisions: power to make orders

    18. 72.Regulations.

    19. 72ZA.Modification of regulation making powers

    20. 72A.Variation of references to time, money etc.

    21. 73. Interpretation.

    22. 74. Meaning of “associate”.

    23. 75. Amendments, repeals and transitional provisions.

    24. 76. Receipts and expenses.

    25. 77. Crown application.

    26. 78. Short title, commencement and extent.

  22. SCHEDULES

    1. SCHEDULE 1

      Determination of Amount of Creditor’s Claim

      1. Amount which may be claimed generally

        1. 1.(1) Subject to the provisions of this Schedule, the amount...

      2. Claims for aliment and periodical allowance on divorce

        1. 2.(1) A person entitled to aliment, however arising, from a...

      3. Debts depending on contingency

        1. 3.(1) Subject to sub-paragraph (2) below, the amount which a...

      4. Debts due under composition contracts

        1. 4.Where in the course of a sequestration the debtor is...

      5. Secured debts

        1. 5.(1) In calculating the amount of his claim, a secured...

      6. Valuation of claims against partners for debts of the partnership

        1. 6.Where a creditor claims in respect of a debt of...

    2. SCHEDULE 2

      1. 1.Except where the permanent trustee is the Accountant in Bankruptcy,section...

      2. 2.(1) In place of section 25, sub-paragraph (2) below shall...

      3. 3.(1) In place of subsections (1A) to (5) of section...

      4. 4.(1) Section 29 shall have effect as follows.

      5. 5.Where an appointment is made under paragraph 3(3), or by...

      6. 6.Section 30 shall not have effect, and, in any sequestration...

      7. 7.In section 39 , subsection (1) shall not have effect...

      8. 8.Except where the permanent trustee is the Accountant in Bankruptcy,any...

      9. 9.(1) Where the permanent trustee is the Accountant in Bankruptcy,...

    3. Schedule 2A

      Modification of duties of permanent trustee in summary administration

      1. 1.The permanent trustee shall comply with the requirements of sections...

      2. 2.The permanent trustee shall, until the debtor is discharged under...

      3. 3.(1) Where the Accountant in Bankruptcy is not the permanent...

      4. 4.(1) The permanent trustee shall, as soon as a certificate...

      5. 5.Except in the case of an application for the grant...

    4. SCHEDULE 3

      PREFERRED DEBTS

      1. Part I List of Preferred Debts

        1. Debts to Inland Revenue

          1. 1.(1) Sums due at the relevant date from the debtor...

        2. Debts due to Customs and Excise

          1. 2.(1) Any value added tax which is referable to the...

        3. Social Security contributions

          1. 3.(1) All sums which on the relevant date are due...

        4. Contributions to occupational pension schemes, etc.

          1. 4.Any sum which is owed by the debtor and is...

        5. Remuneration of employees, etc.

          1. 5.(1) So much of any amount which—

          2. 6.So much of any amount which— (a) is ordered, whether...

        6. Levies on coal and steel production

          1. 6A.Any sums due at the relevant date from the debtor...

      2. Part II Interpretation of Part I

        1. Meaning of “the relevant date”

          1. 7.In Part I of this Schedule “the relevant date” means—...

        2. Periods to which value added tax referable

          1. 8.(1) For the purpose of paragraph 2(1) of Part I...

        3. Periods to which insurance premium tax referable

          1. 8A.(1) For the purpose of paragraph 2(1A) of Part I...

        4. Periods to which landfill tax referable

          1. 8B.(1) For the purpose of paragraph 2(1B) of Part I...

        5. Periods to which climate change levy referable

          1. 8C.(1) For the purpose of paragraph 2(1C) of Part I...

          2. 8D.Periods to which aggregates levy referable

        6. Amounts payable by way of remuneration

          1. 9.(1) For the purposes of paragraph 5 of Part I...

        7. Transitional Provisions

          1. 10.Regulations under paragraph 5 or 6 of Part I of...

    5. SCHEDULE 4

      Discharge on Composition

      1. 1.(1) At any time after the sheriff clerk issues the...

      2. 2.The . . . trustee , where he is not...

      3. 3.The commissioners or, if there are no commissioners, the Accountant...

      4. 4.Where a recommendation is made that the offer of composition...

      5. 5.The notice mentioned in paragraph 4(b) of this Schedule shall...

      6. 6.Where the permanent trustee determines that the creditors have accepted...

      7. 7.(1) The sheriff shall, on the receipt by him of...

      8. 8.(1) At the hearing the sheriff shall examine the documents...

      9. 8A.(1) The Scottish Ministers may by regulations amend paragraphs 4...

      10. 9.(1) Where the offer of composition is approved, the ....

      11. 10.As soon as the procedure under paragraph 9 of this...

      12. 11.(1) Where the documents have been sent to the Accountant...

      13. 12.An order under paragraph 11 of this Schedule discharging the....

      14. 13.Notwithstanding that an offer of composition has been made, the...

      15. 14.A creditor who has not submitted a claim under section...

      16. 15.A debtor may make two, but no more than two,...

      17. 16.(1) On an order under paragraph 11 of this Schedule...

      18. 17.(1) Without prejudice to any rule of law relating to...

      19. 18.(1) Without prejudice to any rule of law relating to...

    6. SCHEDULE 5

      Voluntary Trust Deeds for Creditors

      1. Remuneration of trustee

        1. 1.Whether or not provision is made in the trust deed...

      2. Accountant in Bankruptcy's power to carry out audit

        1. 1A.The Accountant in Bankruptcy may, at any time, audit the...

      3. Registration of notice of inhibition

        1. 2.(1) The trustee, from time to time after the trust...

      4. Lodging of claim to bar effect of limitation of actions

        1. 3.The submission of a claim by a creditor to the...

      5. Valuation of claims

        1. 4.Unless the trust deed otherwise provides, Schedule 1 to this...

      6. Protected trust deeds

        1. 5.(1) The Scottish Ministers may by regulations make provision as...

        2. 6.Where the provisions of paragraph 5 of this Schedule have...

        3. 7.(1) A qualified creditor who has not been sent a...

        4. 8.In this Act a trust deed in respect of which...

        5. 9.Where the trustee under a protected trust deed has made...

        6. 10.Where the trustee under a protected trust deed has obtained...

      7. Creditors not acceding to protected trust deed

        1. 11.A creditor who has not been sent a copy of...

        2. 12.Where, on an application by a creditor under paragraph 11...

        3. 13.Where the court makes an order under paragraph 12 above,...

    7. SCHEDULE 6

      MEETINGS OF CREDITORS AND COMMISSIONERS

      1. Part I Meetings of creditors other than the statutory meeting

        1. Calling of meeting

          1. 1.The . . . trustee shall call a meeting of...

          2. 2.A meeting called under paragraph 1 above shall be held...

          3. 3.The . . . trustee or a commissioner who has...

          4. 4.The . . . trustee or a commissioner calling a...

          5. 5.(1) Where a requirement has been made under paragraph 1...

          6. 6.It shall not be necessary to notify under paragraph 4...

        2. Role of . . . trustee at meeting

          1. 7.(1) At the commencement of a meeting, the chairman shall...

        3. Appeals

          1. 8.The . . . trustee, a creditor or any other...

      2. Part II All Meetings of Creditors

        1. Validity of proceedings

          1. 9.No proceedings at a meeting shall be invalidated by reason...

        2. Locus of meeting

          1. 10.Every meeting shall be held in such place (whether or...

        3. Mandatories

          1. 11.(1) A creditor may authorise in writing any person to...

        4. Quorum

          1. 12.The quorum at any meeting shall be one creditor.

        5. Voting at meeting

          1. 13.Any question at a meeting shall be determined by a...

        6. Objections by creditors

          1. 14.(1) The chairman at any meeting may allow or disallow...

        7. Adjournment of meeting

          1. 15.(1) If no creditor has appeared at a meeting at...

        8. Minutes of meeting

          1. 16.The minutes of every meeting shall be signed by the...

      3. Part III Meetings of Commissioners

        1. 17.The . . . trustee may call a meeting of...

        2. 18.If the . . . trustee fails to call a...

        3. 19.The . . . trustee shall give the commissioners at...

        4. 20.The . . . trustee shall act as clerk at...

        5. 21.If the commissioners are considering the performance of the functions...

        6. 22.The quorum at a meeting of commissioners shall be one...

        7. 23.Any matter may be agreed by the commissioners without a...

    8. SCHEDULE 7

      1. Part I Consequential Amendments

        1. The Judicial Factors (Scotland) Act 1880 (c.4)

          1. 1.In section 3 (interpretation), for the words “section 14 or...

        2. 2.. . . . . . . . . ....

        3. The Judicial Factors (Scotland) Act 1889 (c.39)

          1. 3.In section 2, at the beginning there shall be inserted...

          2. 4.After section 11 there shall be inserted the following sections—...

        4. The Conveyancing (Scotland) Act 1924 (c. 27)

          1. 5.In section 44(4)(c) (limitation of effect of entries in the...

        5. The Third Parties (Rights Against Insurers) Act 1930 (c.25)

          1. 6.(1) In section 1(2) (rights of third parties against insurers...

        6. 7.. . . . . . . . . ....

        7. The Conveyancing and Feudal Reform (Scotland) Act 1970 (c.35)

          1. 8.In paragraph 9(2)(b) of Schedule 3 (“insolvent” for purposes of...

        8. The Superannuation Act 1972 (c.11)

          1. 9.In section 5(2) (benefits under civil service superannuation schemes not...

        9. 10.. . . . . . . . . ....

        10. The Prescription and Limitation (Scotland) Act 1973 (c.52)

          1. 11.In section 9(1), for paragraph (b) there shall be substituted...

        11. The Local Government (Scotland) Act 1973 (c.65)

          1. 12.In section 31(2) (disqualifications regarding members of local authority), for...

        12. The Social Security Pensions Act 1975 (c.60)

          1. 13.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

        13. The Employment Protection (Consolidation) Act 1978 (c.44)

          1. 14.(1) In section 106(6) (payments out of fund to employees),...

        14. The Land Registration (Scotland) Act 1979 (c.33)

          1. 15.In section 12(3)(b) (restriction as regards indemnity in respect of...

        15. The Banking Act 1979 (c.37)

          1. 16.In section 28 (payments to depositors on institution’s insolvency)—

        16. The Estate Agents Act 1979 (c.38)

          1. 17.In section 23(2) (bankrupts not to engage in estate agency...

        17. The Value Added Tax Act 1983 (c.55)

          1. 18.In section 22(4)(a)(ii) (“insolvency” for purposes of refund of tax...

        18. 19—22.. . . . . . . . . ....

        19. The Family Law (Scotland) Act 1985 (c.37)

          1. 23.In section 14(5)(b) for the words from “sections 30” to...

      2. Part II Re-enactment of Certain Provisions of Bankruptcy (Scotland) Act 1913 (c. 20)

        1. Arrestments and Poindings

          1. 24.(1) Subject to sub-paragraph (2) below, all arrestments and attachments...

        2. Exemptions from stamp or other duties for conveyances, deeds etc. relating to sequestrated estates

          1. 25.Any— (a) conveyance, assignation, instrument, discharge, writing, or deed relating...

    9. SCHEDULE 8

      Repeals

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