Bankruptcy (Scotland) Act 1985 (repealed)

[F1 Vesting of estate in trustee] S

Textual Amendments

F1 Cross-heading preceding s. 31 substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

31 Vesting of estate at date of sequestration. S

(1) Subject to section 33 of this Act [F2 and section 91(3) of the Pensions Act 1995], the whole estate of the debtor shall [F3 , by virtue of the trustee's appointment,] vest [F4 in the trustee] as at the date of sequestration F5 . . . for the benefit of the creditorsF6 . . .

(a) F6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) F6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

[F7 (1A) It shall not be competent for—

(a) the trustee; or

(b) any person deriving title from the trustee,

to complete title to any heritable estate in Scotland vested in the trustee by virtue of his appointment before the expiry of the period mentioned in subsection (1B) below.

(1B) That period is the period of 28 days (or such other period as may be prescribed) beginning with the day on which—

(a) the certified copy of the order of the sheriff granting warrant is recorded under subsection (1)(a) of section 14 of this Act; or

(b) the certified copy of the determination of the Accountant in Bankruptcy awarding sequestration is recorded under subsection (1A) of that section,

in the register of inhibitions.]

(2) The exercise by the F8 . . . trustee of any power conferred on him by this Act in respect of any heritable estate vested in him by virtue of [F9 his appointment] shall not be challengeable on the ground of any prior inhibition (reserving any effect of such inhibition on ranking).

(3) Where the debtor has an uncompleted title to any heritable estate in Scotland, the F8 . . . trustee may complete title thereto either in his own name or in the name of the debtor, but completion of title in the name of the debtor shall not validate by accretion any unperfected right in favour of any person other than the F8 . . . trustee.

(4) Any moveable property, in respect of which but for this subsection—

(a) delivery or possession; or

(b) intimation of its assignation,

would be required in order to complete title to it, shall vest in the F8 . . . trustee by virtue of [F10 his appointment] as if at the date of sequestration the F8 . . . trustee had taken delivery or possession of the property or had made intimation of its assignation to him, as the case may be.

(5) Any non-vested contingent interest which the debtor has shall vest in the F8 . . . trustee as if an assignation of that interest had been executed by the debtor and intimation thereof made at the date of sequestration.

[F11 (5A) Any non-vested contingent interest vested in the trustee by virtue of subsection (5) above shall, where it remains so vested in the trustee on the date on which the debtor's discharge becomes effective, be reinvested in the debtor as if an assignation of that interest had been executed by the trustee and intimation thereof made at that date.]

(6) Any person claiming a right to any estate claimed by the F8 . . . trustee may apply to the [F12 sheriff] for the estate to be excluded from such vesting, a copy of the application being served on the F8 . . . trustee; and the [F12 sheriff] shall grant the application if [F13 he] is satisfied that the estate should not be so vested.

(7) Where any successor of a deceased debtor whose estate has been sequestrated has made up title to, or is in possession of, any part of that estate, the [F14 sheriff] may, on the application of the F8 . . . trustee, order the successor to convey such estate to him.

(8) In subsection (1) above [F15 , subject to section 31A of this Act,] the “whole estate of the debtor” means [F16 , subject to subsection (9) below [F17 [F18 and to [F19 sections 71(10B), 78(3B) and 89(2)] of the Social Security Administration Act 1992]],] his whole estate at the date of sequestration, wherever situated, including—

(a) any income or estate vesting in the debtor on that date;

[F20 (aa) any property of the debtor, title to which has not been completed by another person deriving right from the debtor;] and

(b) the capacity to exercise and to take proceedings for exercising, all such powers in, over, or in respect of any property as might have been exercised by the debtor for his own benefit as at, or on, the date of sequestration or might be exercised on a relevant date (within the meaning of section 32(10) of this Act).

[F21 (9) Subject to subsection (10) below, the “whole estate of the debtor” does not include any interest of the debtor as tenant under any of the following tenancies—

(a) a tenancy which is an assured tenancy within the meaning of Part II of the M1 Housing (Scotland) Act 1988, or

(b) a protected tenancy within the meaning of the M2 Rent (Scotland) Act 1984 in respect of which, by virtue of any provision of Part VIII of that Act, no premium can lawfully be required as a condition of the assignation, or

[F22 (c) a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp 10).]

(10) On the date on which the F8 . . . trustee serves notice to that effect on the debtor, the interest of the debtor as tenant under any of the tenancies referred to in subsection (9) above shall form part of his estate and vest in the F8 . . . trustee as if it had vested in him under section 32(6) of this Act.]

Textual Amendments

F2 Words in s. 31(1) inserted (6.4.1997) by 1995 c. 26, s. 122, Sch. 3 para. 13; S.I. 1997/664, art. 2(3), Sch. Pt. II

F3 Words in s. 31(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(2)(a) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F4 Words in s. 31(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 5 para. 13(2)(b) (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 1 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F5 Words in s. 31(1) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F6 S. 31(1)(a)(b) and preceding word repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F7 S. 31(1A)(1B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), {ss. 17 (1)(a)}, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F8 Words in s. 31(2)-(7)(10) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F9 Words in s. 31(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(2) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F10 Words in s. 31(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F11 S. 31(5A) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 29, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F12 Words in s. 31(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(4)(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F13 Word in s. 31(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(4)(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F14 Word in s. 31(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 30(5) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F15 Words in s. 31(8) inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 11

F16 Words inserted by Housing Act 1988 (c. 50, SIF 75:1), s. 118(1)

F17 S. 31(8): by 1997 c. 27, s. 33(2), Sch. 4 (with ss. 1, 2, 28); S.I. 1997/2085, art. 2(2) it is provided (6.10.1997) that the words “and to section 89(2) of the Social Security Administration Act 1992” are repealed

F18 Words in s. 31(8) substituted (1.7.1992) by Social Security (Consequential Provisions) Act 1992 (c. 6), ss. 4, 7(2), Sch. 2 para.69.

F19 Words in s. 31(8) substituted (7.10.1996) by 1995, c. 18, s. 41(4), Sch. 2 para. 8; S.I. 1996/2208, art. 2(b)

F20 S. 31(8)(aa) inserted (1.4.2008.) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), {ss. 17 (1)(b)}, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F21 S. 31(9)(10) added by Housing Act 1988 (c. 50, SIF 75:1), s. 118(2)

F22 S. 31(9)(c) substituted (30.9.2002) by 2001 asp 10, s. 112, Sch. 10 para. 10; S.S.I. 2002/321, art. 2, Sch. (subject to arts. 3-5)

Modifications etc. (not altering text)

C1 S. 31(8) excluded by Social Security Act 1989 (c.24, SIF 113:1), s. 22, Sch. 4 Pt. II para. 8(2)

C2 S. 31(8) restricted (1.7.1992) by Social Security Administration Act 1992 (c. 5), s. 89(2) (with s. 93(1)).

Marginal Citations

M1 1988 c.43

M2 1984 c.58

[F23 F24 31ZA Proceedings under EC Regulation: modified definition of “estate” S

In the application of this Act to insolvency proceedings under the EC Regulation, a reference to “estate” is a reference to estate which may be dealt with in those proceedings.]

Textual Amendments

F23 S. 31A inserted (8.9.2003) by The Insolvency (Scotland) Regulations 2003 (S.I. 2003/2109), reg. 12

F24 S. 31A renumbered (1.4.2008) as s. 31ZA by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 31 (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

[F25 31A Property subject to restraint order S

(1) This section applies where—

(a) property is excluded from the debtor’s estate by virtue of section 420(2)(a) of the Proceeds of Crime Act 2002 (property subject to a restraint order),

(b) an order under section 50, F26 . . . 128 [F27 or 198] of that Act has not been made in respect of the property, and

(c) the restraint order is discharged.

(2) On the discharge of the restraint order the property vests in the F28 . . . trustee as part of the debtor’s estate.

(3) But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 197(2)(d) of that Act (realisation of property to meet receiver’s remuneration and expenses).

Textual Amendments

F25 Ss. 31A-31C inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Ss. 456, 458(1)(3), Sch. 11 para. 15(4); S.I. 2003/333, art. 2(1) Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)

F26 Word in s. 31A(1)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), ss. 74(2), 92, 94, Sch. 8 para. 150(a), Sch. 14; S.I. 2008/755, art. 2(1)(b)(v) (subject to arts 3-14)

F27 Words in s. 31A(1)(b) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), ss. 74(2), 94, Sch. 8 para. 150(b); S.I. 2008/755, art. 2(1)(a) (subject to arts 3-14)

F28 Word in s. 31A(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts 4-6, 10 (as amended by S.S.I 2009/67, art. 7 and S.S.I. 2011/31, art. 5))

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

(1) This section applies where—

(a) property is excluded from the debtor’s estate by virtue of section 420(2)(b), (c) or (d) of the Proceeds of Crime Act 2002 (property in respect of which an order for the appointment of a receiver or administrator under certain provisions of that Act is in force),F29 . . .

(b) a confiscation order is made under section 6, 92 or 156 of that Act,

(c) the amount payable under the confiscation order is fully paid, and

(d) any of the property remains in the hands of the receiver or administrator (as the case may be).

(2) The property vests in the F30 . . . trustee as part of the debtor’s estate.

Textual Amendments

F25 Ss. 31A-31C inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Ss. 456, 458(1)(3), Sch. 11 para. 15(4); S.I. 2003/333, art. 2(1) Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)

F29 Word in s. 31B(1)(a) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F30 Word in s. 31B(2) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

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

(1) This section applies where—

(a) property is excluded from the debtor’s estate by virtue of section 420(2)(a), (b), (c) or (d) of the Proceeds of Crime Act 2002 (property in respect of which a restraint order or an order for the appointment of a receiver or administrator under that Act is in force),

(b) a confiscation order is made under section 6, 92 or 156 of that Act, and

(c) the confiscation order is discharged under section 30, 114 or 180 of that Act (as the case may be) or quashed under that Act or in pursuance of any enactment relating to appeals against conviction or sentence.

(2) Any property in the hands of a receiver appointed under Part 2 or 4 of that Act or an administrator appointed under Part 3 of that Act vests in the F31 . . . trustee as part of the debtor’s estate.

(3) But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 197(2)(d) of that Act (realisation of property to meet receiver’s remuneration and expenses).]

Textual Amendments

F25 Ss. 31A-31C inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Ss. 456, 458(1)(3), Sch. 11 para. 15(4); S.I. 2003/333, art. 2(1) Sch. (subject to transitional provisions in arts. 3-14) (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2(1)(b), Sch. (subject to transitional provisions in arts. 3-7)

F31 Word in s. 31C repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

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

(1) Subject to [F32 subsections (2) and (4B)] below, any income of whatever nature received by the debtor on a relevant date, other than income arising from the estate which is vested in the F33 . . . trustee, shall vest in the debtor.

(2) [F34 Notwithstanding anything in section 11 or 12 of the Welfare Reform and Pensions Act 1999,] the sheriff, on the application of the F33 . . . trustee, may, after having regard to all the circumstances, determine a suitable amount to allow for—

(a) aliment for the debtor; and

(b) the debtor’s relevant obligations;

and if the debtor’s income is in excess of the total amount so allowed the sheriff shall fix the amount of the excess and order it to be paid to the F33 . . . trustee.

[F35 (2WA) Subject to subsection (4L) below, no application may be made under subsection (2) above after the date on which the debtor's discharge becomes effective.

(2XA) An order made by the sheriff under subsection (2) above shall specify the period during which it has effect and that period—

(a) may end after the date on which the debtor's discharge becomes effective; and

(b) shall end no later than 3 years after the date on which the order is made.

(2YA) An order made by the sheriff under subsection (2) above may provide that a third person is to pay to the trustee a specified proportion of money due to the debtor by way of income.

(2ZA) If the debtor fails to comply with an order made under subsection (2) above, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.]

[F36 (2A) The amount allowed for the purposes specified in paragraphs (a) and (b) of subsection (2) above shall not be less than the total amount of any income received by the debtor—

(a) by way of guaranteed minimum pension; and

(b) in respect of his protected rights as a member of a pension scheme,

“guaranteed minimum pension” and “protected rights” having the same meanings as in the Pension Schemes Act 1993.]

(3) The debtor’s relevant obligations referred to in paragraph (b) of subsection (2) above are—

(a) any obligation of aliment owed by him (“obligation of aliment” having the same meaning as in the M3 Family Law (Scotland) Act 1985);

(b) any obligation of his to make a periodical allowance to a former spouse [F37 or former civil partner] ;

[F38 (c) any obligation of his to pay child support maintenance under the Child Support Act 1991,]

but any amount allowed under that subsection for the relevant obligations [F39 referred to in paragraphs (a) and (b) above] need not be sufficient for compliance with a subsisting order or agreement as regards such aliment or periodical allowance.

(4) In the event of any change in the debtor’s circumstances, the sheriff, on the application of the F33 . . . trustee, the debtor or any other interested person, may vary or recall any order under subsection (2) above.

[F40 (4A) The sheriff clerk shall send a copy of any order made under subsection (2) above (and a copy of any variation or recall of such an order) to the Accountant in Bankruptcy.

(4B) Where no order has been made under subsection (2) above, a debtor may enter into an agreement in writing with the trustee which provides—

(a) that the debtor is to pay to the trustee an amount equal to a specified part or proportion of his income; or

(b) that a third person is to pay to the trustee a specified proportion of money due to the debtor by way of income.

(4C) No agreement under subsection (4B) above may be entered into after the date on which the debtor's discharge becomes effective.

(4D) Subsection (2XA) above applies to agreements entered into under subsection (4B) above as it applies to orders made under subsection (2) above.

(4E) An agreement entered into under subsection (4B) above may, if subsection (4K) below has been complied with, be enforced, subject to subsection (4F) below, as if it were an order made under subsection (2) above.

(4F) Subsection (2ZA) above does not apply to an agreement entered into under subsection (4B) above.

(4G) An agreement entered into under subsection (4B) above may be varied—

(a) by written agreement between the parties; or

(b) by the sheriff, on an application made by the trustee, the debtor or any other interested person.

(4H) The sheriff—

(a) may not vary an agreement entered into under subsection (4B) above so as to include provision of a kind which could not be included in an order made under subsection (2) above; and

(b) shall grant an application to vary such an agreement if and to the extent that the sheriff thinks variation is necessary to determine a suitable amount to allow for the purposes specified in paragraphs (a) and (b) of subsection (2) above, being an amount which shall not be included in the amount to be paid to the trustee.

(4J) Where a third person pays a sum of money to the trustee under subsection (2YA) or (4B)(b) above, that person shall be discharged of any liability to the debtor to the extent of the sum of money so paid.

(4K) The trustee shall (unless he is the Accountant in Bankruptcy) send a copy of any agreement entered into under subsection (4B) above (and a copy of any variation of such an agreement) to the Accountant in Bankruptcy.

(4L) If the debtor fails to comply with an agreement entered into under subsection (4B) above, the sheriff, on the application of the trustee, may make an order under subsection (2) above—

(a) ending on the date on which the agreement would, had the debtor continued to comply with it, have ended; and

(b) on the same terms as the agreement.]

(5) Diligence [F41 (which, for the purposes of this section, includes the making of a deduction from earnings order under the Child Support Act 1991)] in respect of a debt or obligation of which the debtor would be discharged under section 55 of this Act were he discharged under section 54 thereof shall not be competent against income vesting in him under subsection (1) above.

(6) Without prejudice to subsection (1) above, any estate, wherever situated, which—

(a) is acquired by the debtor on a relevant date; and

(b) would have vested in the F33 . . . trustee if it had been part of the debtor’s estate on the date of sequestration,

shall vest in the F33 . . . trustee for the benefit of the creditors as at the date of acquisition; and any person who holds any such estate shall, on production to him of a copy of the [F42 order] certified by the sheriff clerk [F43 or, as the case may be, by the Accountant in Bankruptcy appointing the trustee] , convey or deliver the estate to the F44 . . . trustee:

Provided that—

(i)

if such a person has in good faith and without knowledge of the sequestration conveyed the estate to the debtor or to anyone on the instructions of the debtor, he shall incur no liability to the F33 . . . trustee except to account for any proceeds of the conveyance which are in his hands; and

(ii)

this subsection shall be without prejudice to any right or interest acquired in the estate in good faith and for value.

(7) The debtor shall immediately notify the F33 . . . trustee of any assets acquired by him on a relevant date or of any other substantial change in his financial circumstances; and, if the debtor fails to comply with this subsection, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 3 months or to both.

(8) Subject to subsection (9) below, any dealing of or with the debtor relating to his estate vested in the F33 . . . trustee under [F45 this section or] section 31 of this Act shall be of no effect in a question with the F33 . . . trustee.

(9) Subsection (8) above shall not apply where the person seeking to uphold the dealing establishes—

(a) that the F33 . . . trustee—

(i) has abandoned to the debtor the property to which the dealing relates;

(ii) has expressly or impliedly authorised the dealing; or

(iii) is otherwise personally barred from challenging the dealing, or

(b) that the dealing is—

(i) the performance of an obligation undertaken before the date of sequestration by a person obliged to the debtor in the obligation;

(ii) the purchase from the debtor of goods for which the purchaser has given value to the debtor or is willing to give value to the F33 . . . trustee; or

(iii) a banking transaction in the ordinary course of business between the banker and the debtor[F46 ; or

(iv) one which satisfies the conditions mentioned in subsection (9ZA) below,]

and that the person dealing with the debtor was, at the time when the dealing occurred, unaware of the sequestration and had at that time no reason to believe that the debtor’s estate had been sequestrated or was the subject of sequestration proceedings.

[F47 (9ZA) The conditions are that —

(a) the dealing constitutes—

(i) the transfer of incorporeal moveable property; or

(ii) the creation, transfer, variation or extinguishing of a real right in heritable property,

for which the person dealing with the debtor has given adequate consideration to the debtor, or is willing to give adequate consideration to the trustee;

(b) the dealing requires the delivery of a deed; and

(c) the delivery occurs during the period beginning with the date of sequestration and ending on the day which falls 7 days after the day on which—

(i) the certified copy of the order of the sheriff granting warrant is recorded under subsection (1)(a) of section 14 of this Act; or

(ii) the certified copy of the determination of the Accountant in Bankruptcy awarding sequestration is recorded under subsection (1A) of that section,

in the register of inhibitions.]

[F48 (9A) Where the trustee has abandoned to the debtor any heritable property, notice in such form as may be prescribed given to the debtor by the trustee shall be sufficient evidence that the property is vested in the debtor.

(9B) Where the trustee gives notice under subsection (9A) above, he shall, as soon as reasonably practicable after giving the notice, record a certified copy of it in the register of inhibitions.]

(10) In this section “a relevant date” means a date after the date of sequestration and before the date on which the debtor’s discharge becomes effective.

Textual Amendments

F32 Words in s. 32(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 18(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F33 Words in s. 32 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F34 Words in s. 32(2) inserted (29.5.2000) by 1999 c. 30, s. 18, Sch. 2 para. 1; S.I. 2000/1382, art. 2(c)(e)

F35 S. 32(2WA)-(2ZA) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 18(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F36 S. 32(2A) inserted (6.4.1997) by 1995 c. 26, s. 122, Sch. 3 para. 14; S.I. 1997/664, art. 2(3), Sch. Pt. II

F37 Words in s. 32(3)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 34; S.S.I. 2005/604, art. 2(c)

F38 S. 32(3)(c) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(2)(a)(i) (with s. 9(2)); S.I. 1992/2644, art. 2.

F39 Words in s. 32(3) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(2)(a)(ii) (with s. 9(2)); S.I. 1992/2644, art. 2.

F40 S. 32(4A)-(4L) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 18(4), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F41 Words in s. 32(5) inserted (4.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 6(2)(b) (with s. 9(2)); S.I. 1992/2644, art. 2.

F42 Words in s. 32(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 32(a) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F43 Words in s. 32(6) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 32(b) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F44 Words in s. 32 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)

F45 Words in s. 32(8) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 17(2)(a), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F46 S. 32(9)(b)(iv) and preceding word inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 17(2)(b), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F47 S. 32(9ZA) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss 17(2)(c), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10) (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5)

F48 S. 32(9A)(9B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 19(1), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

Modifications etc. (not altering text)

C3 S. 32(2) amended by Education (Student Loans) Act 1990 (c. 6, SIF 41:1, 2), s. 1(5), Sch. 2 para. 6(a)

S. 32(2) restricted (12.8.1998) by 1998/2003, art. 13(2)(a)

S. 32(2) restricted (7.7.2000) by S.S.I. 2000/200, art. 16

C4 S. 32(6) amended by Education (Student Loans) Act 1990 (c. 6, SIF 41:1, 2), s. 1(5), Sch. 2 para. 6(b)

C5 S. 32(8) excluded (25.4.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 154, 155, 164(3), 175(4); S.I. 1991/878, art. 2, Sch.

C6 S. 32(8) excluded (11.12.1999) by S.I. 1999/2979, reg. 16(3)

S. 32(8) excluded (11.12.1999) by S.I. 1999/2979, reg. 19(3)

Marginal Citations

M3 1985 c. 37.

33 Limitations on vesting. S

(1) The following property of the debtor shall not vest in the F49 . . . trustee—

[F50 (a) any property kept outwith a dwellinghouse in respect of which attachment is, by virtue of section 11(1) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), incompetent;

(aa) any property kept in a dwellinghouse which is not a non-essential asset for the purposes of Part 3 of that Act;]

(b) property held on trust by the debtor for any other person.

(2) The vesting of a debtor’s estate in a F49 . . . trustee shall not affect the right of hypothec of a landlord.

(3) Sections 31 and 32 of this Act are without prejudice to the right of any secured creditor which is preferable to the rights of the F49 . . . trustee.

Textual Amendments

F49 Words in s. 33 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))

F50 S. 33(1)(a)(aa) substituted (30.12.2002) for s. 33(1)(a) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64(2), Sch. 3 Pt. 1 para. 15(3)

Modifications etc. (not altering text)

C7 S. 33(1)(a) continued (31.12.2002 or such earlier date as the Scottish Ministers may appoint) by 2001 asp 1, ss. 2(1)(a), 4(1) (with s. 2) (which amending Act was repealed (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), s. 61, Sch. 3 Pt. 1 para. 27 (with s. 63))