Bankruptcy Law

Creditors who have not been called to the proceedings or who refuse to participate in them retain the right to sue the debtor. This position is eminently more comfortable than that of creditors faced with the opening of safeguard, receivership or court-supervised liquidation, in which the principle of the individual stay of proceedings (arrêt des poursuites individuelles) prevails . In fact, when  …

Lack of a stay of proceedings and grace periods

Creditors who have not been called to the proceedings or who refuse to participate in them retain the right to sue the debtor. This position is eminently more comfortable than that of creditors faced with the opening of safeguard, receivership or court-supervised liquidation, in which the principle of the individual stay of proceedings (arrêt des poursuites individuelles) prevails . In fact, when a creditor has not taken part in the conciliation procedure, he cannot invoke the order which has established the agreement of the debtor and his other creditors: he can take legal action to have his claim paid in advance because of the failure to pay a due date provided for in a previous agreement . The existence of a conciliation procedure in progress does not prevent a person from going to the application for interim relief to obtain an advance on the payment of rent resulting from the leasing of vehicles, after several years of late payment . The absence of a suspension of individual proceedings also allows a creditor to assert in court the acquisition of a resolutory clause (clause résolutoire)  or to avail himself of a garnishment of the sums owed to him by the debtor's tenants .

To encourage the success of the conciliation, Article L. 611-7(5), of the Commercial Code nevertheless allows the debtor sued or put in default by a creditor who is a third party to the negotiation to ask the court who opened the proceedings to benefit from the grace periods provided for in Article 1343-5 of the Civil Code. This text allows the court to postpone or spread out the payment of the sums due, within a limit of two years. The ordinance of 15 September 2021  extended the scope of this rule to creditors who have not accepted a request from the conciliator to suspend the payability of their claim. In this case, however, the postponement or deferment granted may not exceed the duration of the conciliator's mission. The conciliation court remains competent to grant time-limits until the decision that puts an end to the conciliation procedure , which can be set at the date of the judgment that approves the agreement and not necessarily at the end of the extension period ordered by the president of the court . The assessment of the merits of an application for a grace period is made in the light of the debtor's situation and in consideration of the creditor's needs. The court may therefore refuse to grant grace periods when the debtor has not paid the creditor for several months and the debt is already longstanding and constantly increasing . The court is not required to distinguish between whether the creditor has accepted or refused to participate in the conciliation procedure, or whether he has summoned the debtor before or after the opening of the procedure . However, the risk of loss of confidence of the creditors who participated in the conciliation and the risk of a breach of equality between creditors are factors that may encourage the president of the court to grant time-limits to the debtor sued by one of those who refused to make any concessions . The court may make the duration of the measures taken conditional on the conclusion of the conciliation agreement. In this case, the creditor concerned is informed of the decision  by the court registrar, by registered letter with acknowledgement of receipt, as well as of any other decision putting an end to the conciliation procedure .

To benefit from the grace period, the debtor must summon the creditor before the president of the court that opened the conciliation procedure. The latter rules according to the accelerated procedure on the merits after having heard the observations of the conciliator or, if applicable, the agent for the performance of the agreement. The request is, if necessary, brought to the attention of the court seized of the lawsuit, which stays its decision until the decision on the time-limits. The court registrar communicates the decision rendered by the president of the court to this court and notifies it to the debtor and the creditor. It shall also be communicated to the conciliator if he is still in office or, where applicable, to the agent for the performance of the agreement. Pursuant to the 4th paragraph of Article 1345-3 of the Civil Code, the court's decision suspends any enforcement proceedings that may have been initiated by the creditor. The interest increases or penalties provided for in the event of delay are not incurred during the period set by the court.

The right of appeal is not open to a creditor who has been granted a grace period pursuant to Article L. 611-7(5). Indeed, this is not covered by the provisions limiting the right of appeal in conciliation proceedings , even if the ordinance is likely to be prejudicial to the creditors . The limitation of the right to appeal against decisions granting grace periods has not been deemed contrary to the constitutional and European provisions guaranteeing the right to a fair trial, as long as they are justified by the concern to ensure the efficiency and speed of the implementation of measures that make it possible to prevent or deal with the difficulties encountered by companies . The possibility of appealing against the lack of recourse available to creditors by means of a nullity appeal has also been closed to them, since a possible error in the application or interpretation of Article L. 611-7 can in no case be considered as an excess of power on the part of the court .

Commercial Code, Art. L. 622-21 (safeguarding procedure), to which Art. L. 631-14 (reorganization) and L. 641-3 (liquidation).

CA Agen, 2 May 2011, LawLex202100005568JBJ.

CA Versailles, 12 December 2009, LawLex202100003611JBJ.

CA Douai, 27 March 2007, LawLex202100003953JBJ ; CA Paris, 7 May 2019, LawLex202100005572JBJ. Contra, CA Rennes, 2 April 2013, LawLex202100003602JBJ.

CA Limoges, 27 April 2016, LawLex202100005581JBJ ; 15 September 2016, LawLex202100005579JBJ.

CA Limoges, 15 September 2016, LawLex202100005579JBJ.

CA Paris, 7 May 2019, LawLex202100005572JBJ.

CA Metz, 18 July 2017, LawLex201700001277JBJ.

Cass. 3e civ., 10 December 2008, LawLex202100003618JBJ.

CA Orléans, 16 May 2019, LawLex202100004996JBJ.

Ordinance No 2021-1193 of 15 September 2021 amending Book VI of the Commercial Code, OJ 16 September 2021.

CA Pau, 28 February 2018, LawLex202100005576JBJ.

CA Angers, 2 July 2013, LawLex202100005589JBJ.

CA Toulouse, 26 May 2014, LawLex202100003601JBJ.

Bankruptcy Law

34. Lack of a stay of proceedings and grace periods

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34. Lack of a stay of proceedings and grace periods

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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