Bankruptcy (Scotland) Act 1985 (repealed)

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

(1) The estate of a debtor may be sequestrated in accordance with the provisions of this Act.

(2) The sequestration of the estate of a living debtor shall be on the petition of—

(a) the debtor, with the concurrence of a qualified creditor or qualified creditors;

(b) a qualified creditor or qualified creditors, if the debtor is apparently insolvent; or

(c) the trustee acting under a voluntary trust deed granted by or on behalf of the debtor whereby his estate is conveyed to the trustee for the benefit of his creditors generally (in this Act referred to as a “trust deed”).

(3) The sequestration of the estate of a deceased debtor shall be on the petition of—

(a) an executor or a person entitled to be appointed as executor on the estate;

(b) a qualified creditor or qualified creditors of the deceased debtor; or

(c) the trustee acting under a trust deed.

(4) In this Act “qualified creditor” means a creditor who, at the date of the presentation of the petition, is a creditor of the debtor in respect of liquid or illiquid debts (other than contingent or future debts [F1 or amounts payable under a confiscation order]), whether secured or unsecured, which amount (or of one such debt which amounts) to not less than £750 or such sum as may be prescribed; and “qualified creditors” means creditors who at the said date are creditors of the debtor in respect of such debts as aforesaid amounting in aggregate to not less than £750 or such sum as may be prescribed [F2 ; and in the foregoing provisions of this subsection “confiscation order” has the meaning assigned by section 1(1) of the Criminal Justice (Scotland) Act 1987 [F3 , by section 71(9)(a) of the Criminal Justice Act 1988] or by section 1(8) of the M1 Drug Trafficking Offences Act 1986].

(5) Paragraphs 1(1) and (3), 2(1)(a) and (2) and 6 of Schedule 1 to this Act shall apply in order to ascertain the amount of the debt or debts for the purposes of subsection (4) above as they apply in order to ascertain the amount which a creditor is entitled to claim, but as if for any reference to the date of sequestration there were substituted a reference to the date of presentation of the petition.

(6) The petitioner shall send a copy of any petition presented under this section to the Accountant in Bankruptcy.

(7) Where, after a petition for sequestration has been presented but before the sequestration has been awarded, the debtor dies then—

(a) if the petitioner was the debtor, the petition shall fall;

(b) if the petitioner is a creditor, the proceedings shall continue in accordance with this Act so far as circumstances will permit.

(8) Where, after a petition for sequestration has been presented under this section but before the sequestration has been awarded, a creditor who—

(a) is the petitioner or concurs in a petition by the debtor; or

(b) has lodged answers to the petition,

withdraws or dies, there may be sisted in the place of—

(i) the creditor mentioned in paragraph (a) above, any creditor who was a qualified creditor at the date when the petition was presented and who remains so qualified at the date of the sist;

(ii) the creditor mentioned in paragraph (b) above, any other creditor.

Textual Amendments

F1 Words inserted by Criminal Justice (Scotland) Act 1987 (c.41, SIF 39:1), ss. 45(5)(a)(i), 47(4)(a)

F2 Words added by Criminal Justice (Scotland) Act 1987 (c. 41, 39:1), ss. 45(5)(ii), 47(4)(a)

F3 Words added by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 123, 170, Sch. 8 para. 16, Sch. 15 para. 107

Marginal Citations

M1 1986 c.32(39:1).