PJC Business

PJC 105.26

F RAUD AND N EGLIGENT M ISREPRESENTATION

24.006(a), 24.008. If there is a dispute regarding when the creditor’s claim arose, a predicate question should be submitted to determine whether the creditor’s claim arose before or within a reasonable time after the transfer was made or the obligation incurred. See Tex. Bus. & Com. Code §§ 24.005(a), 24.006. Asset. The question assumes the thing transferred is an asset of the debtor. If there is a factual dispute about the thing’s status as an asset, a predicate question should be submitted to determine that status. See Tex. Bus. & Com. Code §§ 24.002(2) (defining “asset” as “property of a debtor” but excluding certain property), 24.002(10) (defining “property” as “anything that may be the subject of ownership”). Whether one of the exclusions from the asset definition applies in a given case may present a question of law for the court. If there is no dispute regarding what the asset or obligation at issue is, it may be preferable not to list it or to specifically identify the asset or obligation in the text of the question, as opposed to listing the potential assets or obligations in the instruction. Reasonably equivalent value. “Value” and “reasonably equivalent value” are addressed in Code section 24.004. Whether a debtor obtained reasonably equivalent value in a particular transaction is determined from a reasonable creditor’s perspective at the time of the exchange, without regard to the subjective needs or perspectives of the debtor or transferee and without the wisdom hindsight often brings. Janvey v. The Golf Channel, Inc. , 487 S.W.3d 560, 582 (Tex. 2016). The requirement of reasonably equivalent value can be satisfied with evidence that the transferee (1) fully performed under a lawful, arm’s-length contract for fair market value, (2) provided consideration that had objective value at the time of the transaction, and (3) made the exchange in the ordinary course of the transferee’s business. Janvey , 487 S.W.3d at 564. Other instructions or definitions may be necessary depending on the facts of the case. For example, if there is evidence regarding a range of values, the following instruction regarding reasonably equivalent value may be appropriate: “Reasonably equivalent value” means an amount that at the time of the transfer was within the range of values for which such trans fers [ or obligations ] would occur in an arm’s-length transaction. Transfer. If there is a fact issue regarding whether an asset was transferred, the relevant portions of the following definition (which is taken from section 24.002(12)) should be submitted: “Transfer” means every mode, direct or indirect, absolute or con ditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

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