Catherine Wu的部落格

Preference Claims

在美國有一Preferential Payments 偏頗性清償條款:

• 通常見於歐美與澳紐等國家. 在買家發生破產後, 破產管理人或破產法院以”Preferential payment”為由, 要求賣方退還買家於破產前90天~6個月已支付給賣方的款項.(美國-前90天, 澳洲-前6個月) → 不確定此預收款是否會歸類在其項下??

Any loss suffered by the Insured resulting from a Preference Claim (as defined below) is not by itself an Insured Debt nor a Claimable Event in respect of the relevant Insured Buyer, but such Preference Claim will be considered by the Insurer subject to the following conditions:

1. the Insured has continued as a Policyholder with the Insurer from the date of Shipment through to the date of the preference demand received from the insolvency administrator;
2. the debt which remains unpaid on an Insured Buyer’s account resulting from the Insured making a repayment, pursuant to a Preference Claim, of monies the Insured had received earlier and credited against it, must have been an Insured Debt which originally arose from a Shipment made to that Insured Buyer in accordance with the terms and conditions of the Policy;
3. the Insured has in consultation with the Insurer and through the Insured’s solicitors, vigorously defended the Preference Claim using all defences available to the Insured at law and have paid the Preference Claim only after the Insured has been compelled to by a judgment or court order, or the Insurer has concurred in writing with the Insured’s solicitors written opinion that the Insured has no alternative but to do so;
4. the Insurer's liability under this endorsement for losses arising from a Preference Claim is, together with any other indebtedness, subject to the relevant Permitted Credit Limit available under this Policy and to all other Policy terms and conditions; and
5. the amount the Insured pays pursuant to a Preference Claim must be included in the relevant confirmation or admission of debt in the Insolvency of the relevant Insured Buyer.

The Insurer reserves the right to reappraise any prior claims adjudication in respect of the Insured Buyer following the findings of the Preference Claim action, and in particular the date at which a Notifiable Event first occurred.
Any Premium Incentive (such as a No Claim Bonus or similar) received by the Insured in respect of the applicable Policy Period will not invalidate this extension of cover but will be deducted from any liability the Insurer has under this endorsement.

Preference Claim in this Policy means a demand or claim against the Insured pursuant to a law or regulation by a liquidator or similar official in respect of an Insured Buyer who is insolvent, for the recovery of monies paid to the Insured by or on behalf of that Insured Buyer, which monies are alleged to have given the Insured a preference over the rest of the general body of creditors.

The Insured shall be responsible for all legal costs and disbursements in defending the proceedings, including mediation costs.