Question
Do you know the purpose of an IOP, i.e., the statement of open items, which is sent for confirmation by the debtor, and which you might occasionally receive yourself? Does the confirmation of the sent IOP form by the debtor mean that they acknowledge the existence of their debt? And what does it mean if the debtor does not return the document signed? Is it advisable to include a clause stating that if the signed document is not returned within 8 days, it will be considered that the debtor agrees with the contents of the IOP and that the balance is reconciled?
Answer
Confirmation of the Statement of Open Items (“IOP”) may result in debt acknowledgment, but it is not necessarily the case. Acknowledgment of debt is extremely important for creditors. It interrupts the statute of limitations or may even trigger a waiver of the statute of limitations.
Not every confirmed IOP constitutes an acknowledgment of debt by the debtor
In practice, businesses use the IOP to reconcile the creditor’s claim on one side and the debtor’s debt on the other. This communication typically takes place between the accounting departments of the creditor and debtor, in connection with the annual inventory of assets and liabilities. This obligation is specified in Article 54 of the Companies Act (ZGD-1). It states that at least once a year, it is necessary to verify whether the balances of individual active and passive items in the business books match the actual situation. Companies usually do this by sending IOP forms to customers/suppliers who have a balance on their accounts on the selected sending date.
The mere confirmation (signature) of the IOP form by the debtor does not substantively mean that the debtor acknowledges the debt. It only confirms the transcription from the creditor’s business books regarding the creditor’s claim against the debtor. Although all data is listed on the IOP form sent to the debtor, and the debtor confirms it, this does not necessarily mean that it forms the basis for debt acknowledgment.
Judicial practice has taken the position that simply confirming the transcription of facts from the business books does not constitute a basis for debt acknowledgment. This confirmation alone does not unequivocally indicate that the debtor acknowledges the existence of their debt to the creditor. Therefore, merely signing, not signing, or signing the IOP form late does not equate to an acknowledgment of the debtor’s debt. Additionally, including various clauses that specify certain consequences in the event of debtor inactivity has no legal validity or effect in terms of debt acknowledgment.
Debt acknowledgment means that the debtor, through their actions, admits to owing a specific debt to the creditor. Acknowledgment is a unilateral declaration of intent, which can be made explicitly or through implied actions.
Examples of such actions by the debtor
- A special statement by the debtor confirming the debt,
- The debtor making a payment to the creditor’s account,
- Payment of interest,
- Providing security,
- A proposal for installment payments,
- An agreement between the creditor and debtor to set a new deadline for fulfilling the obligation,
- Notification to the creditor that the debtor has agreed with a third party to assume the obligation under Article 434 of the Obligations Code.
- Confirmation of the IOP form can constitute debt acknowledgment if it includes an appropriate statement from the debtor acknowledging the debt. Additionally, we advise paying special attention to whether the document and statements on the document have been made by the legal representative of both the debtor and creditor.
Applicable Legal Provisions:
– Zakon o gospodarskih družbah (Uradni list RS, št. 65/09 – uradno prečiščeno besedilo, 33/11, 91/11, 32/12, 57/12, 44/13 – odl. US, 82/13, 55/15, 15/17, 22/19 – ZPosS, 158/20 – ZIntPK-C, 18/21, 18/23 – ZDU-1O in 75/23);
– Obligacijski zakonik (Uradni list RS, št. 97/07 – uradno prečiščeno besedilo, 64/16 – odl. US in 20/18 – OROZ631);
– Sodna praksa sodišč RS.
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