Supreme Court Ruling No. 22/2026, of 14 January, resolves a matter of considerable doctrinal and practical relevance in the field of insolvency law: determining the relevant point in time for assessing the status of a person specially related to the debtor, for the purposes of subordinating the claim, when it has been acquired by assignment and is therefore derivative in nature. The core of the interpretative debate lies in the application of Article 93.2.1 of the Insolvency Law, as amended by Law 9/2015 of 25 May.
The legal grounds for the ruling are based on a precise definition of the subject matter of the appeal. The Supreme Court makes it clear from the outset that it is not disputing the objective existence of family ties between the person who controls the creditor and the majority shareholder and administrator of the insolvent company, but rather the moment to which the assessment of that relationship should refer when the claim does not originally arise in favour of the creditor seeking its recognition in insolvency proceedings.
The Provincial Court of Murcia had considered that, in the case of a claim acquired by assignment, the relevant moment for determining the special relationship should be that at which the assignee’s ownership of the claim arose, i.e. the moment of the assignment. On this basis, it classified the claim as subordinated, as the family relationship determining the special relationship provided for in Article 93.2.1 LC existed at that time.
The Supreme Court, however, rejects this approach and places the analysis on a different level, based on a strict interpretation of the structure of the contractual relationship and the system of classification of insolvency claims itself.
One of the central themes of the First Chamber’s reasoning is the conceptual distinction between the credit and the ownership of the credit. The Court recalls that credit is a legal obligation that arises from the legal transaction generating the obligation, while the assignment of credit is merely a transfer transaction that does not alter the existence, content or cause of the credit, but only the subjective position of the creditor.
On this basis, the Supreme Court affirms that the moment of assignment cannot be identified with the creation of the credit, even in functional terms for insolvency purposes. The mortgage credit at issue in the dispute was created in 2007, when it was granted by a financial institution that had no special relationship with the debtor. The subsequent assignment of the claim in 2017 does not give rise to a new claim, but rather maintains the pre-existing contractual relationship intact.
The Chamber then addresses the interpretation of Article 93.2.1 LC, emphasising that the provision does not contain any express reference to the assignment of claims or to an alternative temporal criterion for derivative claims. The rule merely identifies certain subjective cases of connection, but does not alter the general rules on the creation of obligations or introduce a specific exception for claims acquired by transfer.
The Supreme Court emphasises that when the insolvency legislator has wished to address moments other than the creation of the claim, it has done so expressly. The absence of a specific provision for derivative claims prevents, in the opinion of the Chamber, the introduction by way of interpretation of a temporal criterion other than the general one.
Consequently, the status of a person specially related to the debtor must be assessed at the time of the original creation of the claim, since it is at that time that the nature of the obligational relationship that enters into the insolvency proceedings is defined.
The Supreme Court explicitly criticises the reasoning of the Provincial Court, considering that it unduly shifts the focus of the analysis from the claim to the person of the creditor at a later and contingent moment. In the opinion of the Chamber, this approach introduces an element of uncertainty that is incompatible with the principles of legal certainty and equal treatment of creditors.
Accepting that subordination depends on a subsequent assignment would mean that the classification of the claim could vary depending on decisions unrelated to the business generating the obligation, which would distort the insolvency system and allow for inconsistent results: the same claim could be ordinary or subordinated depending on who holds it at any given time.
From a teleological point of view, the Supreme Court clarifies that the purpose of subordinating the claims of persons with a special relationship is to penalise certain structural situations of proximity at the time of financing, in which the creditor assumes a risk comparable to that of the partner. This logic does not apply when the claim arises in favour of an independent third party, even if it is subsequently acquired by a related person.
The Chamber rejects the idea that the purpose of the provision justifies a broad interpretation that allows the credit to be ‘contaminated’ merely because it has been transferred. In the absence of a specific rule to that effect, subordination cannot be based on a supervening relationship.
On the basis of the foregoing, the Supreme Court upholds the appeal, overturns the Provincial Court’s ruling and renders the classification of the credit as subordinated null and void. The Chamber concludes that, as there was no special relationship at the time the credit originally arose, the conditions of Article 93.2.1 LC are not met, regardless of whether such a relationship existed at the time of the transfer.