Bankruptcy (Scotland) Act 1985 (repealed)

39 Management and realisation of estate. S

(1) As soon as may be after his confirmation in office, the permanent trustee shall consult with the commissioners or, if there are no commissioners, with the Accountant in Bankruptcy concerning the exercise of his functions under section 3(1)(a) of this Act; and, subject to subsection (6) below, the permanent trustee shall comply with any general or specific directions given to him, as the case may be—

(a) by the creditors;

(b) on the application under this subsection of the commissioners, by the court; or

(c) if there are no commissioners, by the Accountant in Bankruptcy,

as to the exercise by him of such functions.

(2) The permanent trustee may, but if there are commissioners only with the consent of the commissioners, the creditors or the court, do any of the following things if he considers that its doing would be beneficial for the administration of the estate—

(a) carry on any business of the debtor;

(b) bring, defend or continue any legal proceedings relating to the estate of the debtor;

(c) create a security over any part of the estate;

(d) where any right, option or other power forms part of the debtor’s estate, make payments or incur liabilities with a view to obtaining, for the benefit of the creditors, any property which is the subject of the right, option or power.

(3) Any sale of the debtor’s estate by the permanent trustee may be by either public sale or private bargain.

(4) The following rules shall apply to the sale of any part of the debtor’s heritable estate over which a heritable security is held by a creditor or creditors if the rights of the secured creditor or creditors are preferable to those of the permanent trustee—

(a) the permanent trustee may sell that part only with the concurrence of every such creditor unless he obtains a sufficiently high price to discharge every such security;

(b) subject to paragraph (c) below, the following acts shall be precluded—

(i) the taking of steps by a creditor to enforce his security over that part after the permanent trustee has intimated to the creditor that he intends to sell it;

(ii) the commencement by the permanent trustee of the procedure for the sale of that part after a creditor has intimated to the permanent trustee that he intends to commence the procedure for its sale;

(c) where the permanent trustee or a creditor has given intimation under paragraph (b) above, but has unduly delayed in proceeding with the sale, then, if authorised by the court in the case of intimation under—

(i) sub-paragraph (i) of that paragraph, any creditor to whom intimation has been given may enforce his security; or

(ii) sub-paragraph (ii) of that paragraph, the permanent trustee may sell that part.

(5) The function of the permanent trustee under section 3(1)(a) of this Act to realise the debtor’s estate shall include the function of selling, with or without recourse against the estate, debts owing to the estate.

(6) The permanent trustee may sell any perishable goods without complying with any directions given to him under subsection (1)(a) or (c) above if the permanent trustee considers that compliance with such directions would adversely affect the sale.

(7) The validity of the title of any purchaser shall not be challengeable on the ground that there has been a failure to comply with a requirement of this section.

(8) It shall be incompetent for the permanent trustee or an associate of his or for any commissioner, to purchase any of the debtor’s estate in pursuance of this section.

Modifications etc. (not altering text)

C1 S. 39(3)(4)(7)(8) applied with modifications by Insolvency Act 1986 (c. 45, SIF 66), ss. 185(1)(b), 443

C2 Ss. 38, 39(4)(7) applied with modifications by S.I. 1986/1915, Rule 4.22.(1)