Commercial Leases/Business Goodwill

Article L. 622-21 of the Commercial Code establishes the general principle of interruption and prohibition of legal actions by creditors whose claims are not mentioned in I of Article L. 622-17, meaning claims arising for the needs of the conduct of the collective procedure, from the date of the opening judgment. The principle applies, in particular, to actions seeking the debtor's condemnation to …

Principle of interruption and prohibition of individual proceedings

Article L. 622-21 of the Commercial Code establishes the general principle of interruption and prohibition of legal actions by creditors whose claims are not mentioned in I of Article L. 622-17, meaning claims arising for the needs of the conduct of the collective procedure, from the date of the opening judgment. The principle applies, in particular, to actions seeking the debtor's condemnation to pay a sum of money and the termination of the contract for failure to pay a sum of money prior to the opening judgment (Art. L. 622-21, I, 1° and 2° Commercial Code). Consequently, the principle of prohibition of individual proceedings includes the landlord's action for judicial termination of the commercial lease and the action seeking to have the judge acknowledge the acquisition of a termination clause inserted in the lease , based on a monetary breach by the lessee.

The principle of suspension or prohibition of proceedings is intended to apply only to actions in progress, initiated before the judgment opening the insolvency proceedings, or that may arise during the latter. It follows that this rule does not apply to decisions confirming the termination of commercial leases, which have become res judicata  before the judgment opening the insolvency proceedings. If the termination clause is definitively acquired before the opening of the insolvency proceedings, the tenant cannot invoke the suspension of ongoing individual proceedings, and the lease must cease . However, the action for termination initiated by the landlord before the judgment opening the tenant's insolvency proceedings, aimed at confirming the acquisition of the termination clause provided in the lease for non-payment of rent or charges due prior to the judgment opening the proceedings, cannot, since it has not resulted in any decision that has become res judicata, be pursued after this judgment by virtue of the principle of the prohibition of individual proceedings . Furthermore, the effects of the order to pay, issued before the date of the judgment opening, are also suspended .

The principle of the suspension of individual proceedings also applies to the order issued by the summary judge, who may be seized for the implementation of a termination clause, based on Article 834 of the Code of Civil Procedure or pursuant to the lease provisions granting jurisdiction, to establish the termination of the lease, even if it is provisional in nature (Article 484 CPC) and does not have, in the main, the authority of res judicata (Article 488 CPC) . Therefore, if the appeal period against this order has not expired on the day of the commencement of insolvency proceedings or if it is appealed, the landlord can no longer pursue the initiated action. However, if it has become res judicata before the commencement of insolvency proceedings, the termination clause is acquired, and the landlord is admissible to pursue the acknowledgment of the lease termination .

Finally, when the termination clause is acquired before the commencement of insolvency proceedings, the lessee may be evicted from the premises, as the eviction does not constitute an enforcement measure on movable or immovable property (Article L. 622-21, II Commercial Code) and is therefore not challenged by the principle of suspension and prohibition of proceedings .

Cass. 3e civ., 13 April 2022, LawLex202200002466JBJ.

Decision not subject to suspensive appeal or not appealed within the required time limits (Art. 500 Code of Civil Procedure)

Cass. com., 12 May 1992, LawLex202300011052JBJ; 4 November 1998, LawLex202300011919JBJ; Cass. 3e civ., 8 December 1999, LawLex202100003222JBJ.

Cass. com., 12 June 1990, LawLex202100002780JBJ; 14 May 1991, LawLex202300011918JBJ; 3 July 2007, LawLex202200004648JBJ; 15 February 2011, LawLex202200008618JBJ; Cass. 3e civ., 18 September 2012, LawLex202300011923JBJ; 26 May 2016, LawLex202100003335JBJ; CA Nîmes, 19 October 2022, LawLex202200009439JBJ; CA Versailles, 20 October 2022, LawLex202200009676JBJ; CA Caen, 28 March 2024, LawLex202400002887JBJ; CA Paris, 24 May 2024, LawLex202400003979JBJ; CA Versailles, 20 June 2024, LawLex202400004830JBJ; CA Paris, 21 June 2024, LawLex202400004829JBJ; CA Toulouse, 3 July 2024, LawLex202400005110JBJ.

Cass.com 16 March 1993, LawLex202300011924JBJ; 9 December 1997, LawLex202300011925JBJ; Cass. 3e civ., 9 January 2008, LawLex202100002580JBJ.

Cass. com., 30 January 2007, LawLex202200004651JBJ; 28 October 2008, LawLex202100003333JBJ.

Cass. com., 11 January 1994, LawLex202300011926JBJ; 24 October 1995, LawLex202300011920JBJ.

Cass. com 19 December 1989, LawLex202300011927JBJ; Cass. 3e civ., 21 February 1990, LawLex202100002329JBJ; Cass. com., 3 December 2003, LawLex202300004139JBJ.

Commercial Leases/Business Goodwill

265. Principle of interruption and prohibition of individual proceedings

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265. Principle of interruption and prohibition of individual proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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