According to the OHADA Law, personal bankruptcy and rehabilitation shall apply to any trader who is a natural person, any natural person who is a manager of a company subject to collective proceedings, any natural person permanently representing a company.
A manager of a company shall include any ex officio or de facto manager whether remunerated or not, apparent or hidden.
Cases of personal bankruptcy shall be declared to any person who;
- Takes away the account of the company, misappropriates or hides part of its assets or recognizes fraudulent debts which do not exist,
- In order to conceal his scheme, carries out a commercial activity in his personal interest either through an intermediary or under cover of a company,
- Disposes of the credit or property of the company as if the property belongs to him,
- Obtains for himself or for the company by fraudulent misrepresentation a composition agreement which is later annulled,
- Commits acts in bad faith or commits unworkable negligent acts or serious offences against the trade rules and practices such as;
- The carrying on of a commercial activity or the exercise of the function of manager, administrator, chairman, general manager or liquidator in violation of a prohibition as provided for by the Uniform Act or by the law of each state party,
- The keeping of accounts which are not in conformity with the accounting regulations and the practices of the profession, having regard to the size of the company,
- The entry into an engagement on behalf of a third party without any consideration that commits the company or debtor to carry out some engagement which is considered too heavy at the time of its conclusion, having regard to the situation of the company or debtor etc.
Rehabilitation
Where debts are cleared under the conditions laid down by the OHADA Law, it shall entail the discharge of the debtor. To be discharged as of right, a partner who is jointly and severally liable for the debts of a company declared insolvent shall show proof that even though he was granted a special composition agreement, he has paid under the same conditions all the debts of the company. The following may be discharged where proof is shown of their probity:
- Any person who has obtained a special composition agreement from creditors and who has fully paid the dividends promised,
- Any person who justifies the total remission of his debts by his creditors or their unanimous consent to his discharge etc.
There are special procedures involved in the declaration of personal bankruptcy and rehabilitation.