Missing primary records at a bankrupt company are no reason to ignore its claim for repayment. The recipient should explain the legal basis and evidence performance. An unavailable archive and a transaction that never existed are different facts.
This guide is for a company or individual entrepreneur facing an unjust enrichment claim from a bankrupt counterparty because records were not handed over. The separate article covers claim classification, the register and personal debt discharge. Here the task is a substantive response to particular transfers.
↔ Payment
Connect each transfer to a particular obligation.
▤ Performance
Find the delivery, work or service trail with those involved.
✓ Response
Submit your position and exhibits by the court’s deadline.
① Read the actual grounds first
Establish what is alleged: a mistaken transfer, overpayment, unearned advance or receipt without an explained basis. Civil Code Article 1102 concerns acquiring or saving property at another’s expense without legal grounds; Article 1109 contains exceptions to repayment. The payer’s insolvency does not turn payment for goods delivered into unjust enrichment.
Read the relief requested and payment schedule. A claim to recover enrichment differs from an application to invalidate a transaction. Evidence of delivery may explain payment but cannot provide universal immunity against bankruptcy avoidance. Keep responses to those different claims distinct.
② Missing records and the burden of proof
Paragraph 24 of the 2024 Bankruptcy Practice Review, approved by the Supreme Court Presidium on 25 April 2025, addresses an archive not handed over. Once acquisition or retention of property is evidenced, the recipient substantiates the legal basis. A claimant cannot be required to prove information held by a defendant evading disclosure.
This gives neither side an automatic victory. The recipient discloses the basis and the court assesses the material. Rejection of an enrichment claim does not preclude avoidance of a transaction identified from the documents. The practical lesson is to avoid relying solely on a demand that the claimant first find the contract.
③ Reconstruct the transaction trail
Collect actual performance records as well as the signed contract. Seek authentic duplicates from your bank, electronic document operator, carrier or other holder. Preserve original electronic files, signatures and acknowledgements rather than screenshots alone.
| Issue | Useful records | Link to the payment |
|---|---|---|
| Order and terms | Contract, specification, order, correspondence | Number, date, subject and agreed price |
| Goods delivered | Transfer documents, delivery notes, transport and warehouse records | Items, quantity, address and recipient |
| Work or service | Acceptance record, report, output, approvals, business correspondence | Period, scope and particular result supplied |
| Settlement | Statement, payment order, refund, reconciliation | Purpose, partial performance and balance |
| Electronic exchange | Signed files, delivery and acceptance acknowledgements | Sender, recipient, time and document content |
Compare reconciliation statements and tax records with primary material. They can help reconstruct dealings, but no particular document should be declared sufficient for every kind of performance. If the signatory is disputed, explain authority and acceptance circumstances. Do not manufacture records retrospectively.
④ When evidence cannot be obtained
Commercial Procedure Code Article 65 requires parties to substantiate claims and objections and disclose evidence in time. Article 66(4) permits a request that the court obtain evidence unavailable through the party’s own efforts. Identify the document, relevant fact, holder and reason it cannot be obtained independently.
✎ Outline request for production
“Please require [identified holder and address] to produce [document, period and particulars]. It establishes [relevant fact concerning the payment]. Independent access is impossible because [specific reason]. Steps already taken were [request, date and response]. The document is believed to be held at [location]. Exhibits: [supporting material].” Adapt this to the actual case; a request for everything does not explain its scope.
Explain loss of your own archive honestly and identify reconstruction efforts. Failure to locate a document is not proof of performance. A production motion does not replace the response or disclosure of material already held. Retain evidence that documents were sent to the other participants.
⑤ Reconciliation and the written response
Prepare a schedule: payment → basis → performance → refund → disputed portion. Distinguish established facts, disputed facts and issues still requiring checks. Do not present an arithmetic balance as an admission of liability.
- Introduction: court, case, parties, claim and response deadline.
- Position on payments: distinguish admitted transfers from disputed legal classification.
- Basis and performance: provide a separate explanation and exhibits for each operation.
- Calculation: identify refunds, useful performance, duplication and the counter-calculation.
- Relief sought: state the final position, specific procedural requests and exhibit index.
If interest is claimed, check its legal basis, dates and principal separately; a partial refund requires corresponding reconciliation. This guide does not replace a full interest calculation. If several independent grounds are pleaded, address each while preserving the distinction between absence of a payment basis and invalidity of the transaction.
⑥ Frequently asked questions
Can I stay silent because the bankrupt claimant lacks the contract?
That is risky. Disclose your records and explain the legal basis. Paragraph 24 takes account of the claimant’s inability to obtain evidence held by the other party.
Does a payment description replace delivery evidence?
It helps identify the obligation but does not describe the whole performance. Compare it with the order, transfer and acceptance records.
Does rejection of enrichment protect against every later dispute?
No. The Review permits avoidance based on documents obtained. That dispute requires assessment of its own grounds and conditions.
Can newly drawn-up acceptance records replace lost ones?
Do not create fictitious backdated records. Obtain authentic duplicates and disclose their source and reconstruction circumstances.
Checked on 26 October 2026. Sources: paragraph 24 of the 2024 Bankruptcy Practice Review, approved on 25 April 2025; Civil Code Article 1102 and Article 1109 (version of 24 June 2025, with changes of 9 June 2026); Commercial Procedure Code Article 65 and Article 66 (version of 15 December 2025, effective amendments from 1 January 2026). Future versions were not applied.