Affiliation is not the result
It triggers closer scrutiny but cannot replace analysis of the debt’s basis and purpose.
Timing matters
The court compares the financing date with the crisis, capital position and controller conduct.
Labels are not decisive
A loan, supply or advance is assessed by its real economic substance.
Transactions compared by the court
| Situation | Review | Possible result |
|---|---|---|
| Ordinary commercial finance | Market terms, business purpose and independent-creditor conduct | Ordinary priority if the debt is proved |
| Crisis financing | Why equity was not increased and who assumed the risk | Lower priority if debt replaced capital |
| Intra-group supply or advance | Actual performance, pricing, payments and goods movement | Depends on economic substance |
| Claim acquired from an independent party | Timing and purpose of assignment and original debt nature | Buyer affiliation may not alter priority |
Claim review workflow
Establish relationships
Identify control, group links, common managers, beneficiaries and decision-making influence.
Build the timeline
Compare contract and performance dates with financial distress and third-party creditor conduct.
Test business purpose
Compare the terms with the market and an independent party’s likely conduct.
Separate components
Transactions with different dates and purposes may require distinct priority findings.
Relevant evidence
- contracts, payments, primary records and movement of goods;
- financial statements and capital-deficiency evidence;
- shareholder and management decisions;
- correspondence explaining purpose and repayment terms;
- market comparison of interest, security and maturity;
- creditor conduct after default.
FAQ
Is every shareholder claim subordinated?
No. Status alone is insufficient; basis, timing and economic purpose require evidence.
Can only part of a claim be subordinated?
Yes. Separate tranches or transactions may have different purposes and treatment.
Who bears the burden of proof?
It depends on disclosed links and facts. A related creditor is expected to provide full disclosure of the relationship and debt origin.
Does assignment change priority?
Assignment preserves defences and does not by itself change the original claim’s economic nature.
Official sources
- Supreme Court Plenum Resolution No. 41 of 23 December 2025
- Supreme Court Review of 29 January 2020
- Bankruptcy Law
Related guides: creditor-register filing, claim assignment and current claims.
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