Bankruptcy Law

A creditor can only be held liable for improper financial assistance if it can be shown that the assistance was granted while the creditor was in possession of information concerning the company's viability or the risks of the transaction for the company . In fact, a mutual agricultural insurance fund (caisse de mutualité sociale agricole) can only be held liable for improper financial assistance  …

Awareness of difficulties

A creditor can only be held liable for improper financial assistance if it can be shown that the assistance was granted while the creditor was in possession of information concerning the company's viability or the risks of the transaction for the company . In fact, a mutual agricultural insurance fund (caisse de mutualité sociale agricole) can only be held liable for improper financial assistance if, at the time it granted a member deferred payment of its contributions, it knew or should have known that the member was in an irremediably compromised situation . Similarly, in order for a bank to be held liable for abusive support, it must be established that it applied a policy of ruinous credit to a company whose irremediably compromised situation it knew or should have known about . This is the case when, at the time the loans were granted, the creditor knew or should have known that the borrowing company was in a compromised situation, or that the loans were unbearable for the company's cash flow or incompatible with any profitability , or when the creditor was alerted by an accounting firm to the debtor's state of cessation of payments, even though it requested proof of provisional work schedules or estimates, which were insufficient to provide any guarantees as to the debtor's future .

Some creditors are required to analyze the debtor's situation before granting credit, and are therefore presumed to be aware of the debtor's difficulties. For example, a professional financial guarantor who, having been informed of the existence of negative working capital, negative cash flow, a large number of principal accounts in debit and negative group cash flow, did not carry out in-depth checks before granting the loan, is at fault . On the other hand, an insurance company which, not being a credit institution, has no information on its debtor's accounts, bank defaults or debts to other third parties, cannot be presumed to have been aware of the debtor's irremediably compromised situation, solely on the basis of debts owed to it, when the latter's cashed cheques have been honored, making it likely that the debtor has not ceased payments . Similarly, a loan granted after a study carried out by a chartered accountancy firm had concluded that there was nothing to prevent the bank from granting the loan requested by the corporate manager, is not at fault . The necessary rigor in the analysis of the credit applicant's accounting situation does not exclude a subjective assessment of the project's chances of success on the part of the bank, and even an imprudent estimate of the conditions or timescales necessary for success is not sufficient to characterize wrongful assistance .

CA Poitiers, 27 February 2018, LawLex202300008207JBJ (LJ).

Cass. com., 10 December 2003, LawLex202100001576JBJ (RJ).

Cass. com., 22 March 2005, LawLex202100001577JBJ (LJ).

Cass. com., 10 June 2008, LawLex202100003126JBJ (RJ).

CA Besançon, 23 November 2021, LawLex202300007846JBJ (LJ).

CA Paris, 23 September 2016, LawLex202300008283JBJ (LJ).

Cass. com., 19 May 2015, LawLex202300008188JBJ (LJ).

CA Riom, 9 March 2016, LawLex202300008310JBJ (LJ).

CA Amiens, 24 October 2019, LawLex202300008276JBJ (RJ).

Bankruptcy Law

973. Awareness of difficulties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

973. Awareness of difficulties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise