Bankruptcy Law

The approval of the conciliation agreement automatically lifts any ban on issuing cheques that was imposed prior to the opening of the conciliation proceedings. When the debtor is an individual entrepreneur with limited liability, this prohibition is lifted on the accounts relating to the assets covered by the procedure . The debtor provides proof of the lifting of the ban on issuing cheques to th …

Lifting of the cheque-issuing ban, new money privilege and crystallization of the date of cessation of payments

The approval of the conciliation agreement automatically lifts any ban on issuing cheques that was imposed prior to the opening of the conciliation proceedings. When the debtor is an individual entrepreneur with limited liability, this prohibition is lifted on the accounts relating to the assets covered by the procedure . The debtor provides proof of the lifting of the ban on issuing cheques to the credit institution that issued the ban by submitting a copy of the judgment of homologation, together with a statement of payment incidents. The credit institution informs the Banque de France of the lifting of the ban for the purpose of adjustment .

In order to get the company's creditors to help the company overcome its difficulties not only by granting deferred payments (moratoires) on past claims, but also by making new cash injections, the 2005 legislator  instituted a new privilege, known as the “new money” or “conciliation” privilege. The same privilege is offered to persons who provide, within the framework of the conciliation, a new good or service in order to ensure the continuation of the business and its durability. It gives these persons the right to be paid, “in the event of the opening of safeguard, receivership or court-supervised liquidation proceedings”, for the amount of their contribution, by privilege before all other claims, except for the preferential claim of employees and legal costs arising after the opening judgment . In addition, the claims guaranteed by the new money privilege cannot be subject to remissions or delays, which would not have been accepted by their holders . Shareholders and partners of the debtor who have made contributions in the context of a capital increase  as well as contributions made by the creditors who signed the agreement before the opening of the conciliation procedure , are excluded from the benefit of the privilege. The waiver of the conciliation privilege by a creditor cannot be presumed and can only be characterized in the presence of certain, i.e. unequivocal elements . The failure to mention the privileged nature of the claim in the judgment of homologation may be appealed by the creditor in order to have the privilege recorded . The same omission in the declaration of the claim can be rectified by a new declaration made in a subsequent proceeding . The order of the official receiver who has pronounced the admission of a claim can also be reversed when it does not mention the privileged nature resulting from the homologation of the conciliation agreement .

Finally, except in cases of fraud, the homologation of a conciliation agreement has the effect of prohibiting the postponement of the date of cessation of payments (cessation de paiements) to a date prior to that of the agreement . The purpose of this favor is to protect creditors who have contributed new money in exchange for securities granted by the debtor. Indeed, before the law of 26 July 2005, the possible postponement of the date of cessation of payments to a date prior to that of the agreement exposed creditors to the risk of seeing the securities granted by the debtor fall under the nullity of the suspect period. Only homologated amicable agreements benefit from this new security . If this is the case, a settlement made within the framework of a conciliation procedure, which confers on the claim a character of overdue debt exclusive of any loss of the debtor, cannot be considered as an unusual means of payment sanctioned by the nullities of the suspect period, so that the exercise of the revocatory action is not open to the creditors . Similarly, a pledge obtained in the context of an approved conciliation agreement cannot be called into question by the subsequent opening of receivership procedure .

CA Paris, 3 July 2014, LawLex202100005583JBJ.

Commercial Code, Art. L. 631-8. For an application, see CA Paris, 11 September 2018, LawLex202100004998JBJ. Comp. even holding that the date of cessation of payments cannot be set at a date prior to that which marks the failure of the conciliation, since recourse to this procedure implies an absence of cessation of payments for more than 45 days, CA Paris, 28 September 2017, LawLex202100005577JBJ.

CA Toulouse, 11 March 2009, LawLex202100005168JBJ, for a non-approved agreement.

Cass. com., 1st April 2008, LawLex202100001237JBJ.

CA Colmar, 8 June 2016, LawLex202100005580JBJ.

Law No 2005-845 of 26 July 2005, OJ 27 July 2005. The consistency of the lien was later improved by Ordinance No 2014-326 of 12 March 2014, OJ 14, 2014.

Commercial Code, Art. L. 622-17 and L. 643-8.

On the other hand, current account contributions fall within the scope of the lien, see CA Paris, 6 October 2017, LawLex202100003615JBJ.

Commercial Code, Art. L. 611-11 and, for an application, CA Montpellier, 2 February 2010, LawLex202100003615JBJ.

CA Paris, 6 October 2017, LawLex202100003615JBJ.

CA Rennes, 1st December 2015, LawLex202100003614JBJ.

Bankruptcy Law

32. Lifting of the cheque-issuing ban, new money privilege and crystallization of the date of cessation of payments

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32. Lifting of the cheque-issuing ban, new money privilege and crystallization of the date of cessation of payments

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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