Bankruptcy Law

The Law of 9 December 2016 , which is immediately applicable to current insolvency proceedings and pending liability proceedings, added a clarification to Article L. 651-2 of the Commercial Code: the manager's simple negligence in managing the company cannot constitute a fault likely to engage his liability for insufficiency of assets . Negligence in the management of the company is not limited to …

Intentional element

The Law of 9 December 2016 , which is immediately applicable to current insolvency proceedings and pending liability proceedings, added a clarification to Article L. 651-2 of the Commercial Code: the manager's simple negligence in managing the company cannot constitute a fault likely to engage his liability for insufficiency of assets . Negligence in the management of the company is not limited to cases where the manager was unaware of the circumstances or situation surrounding the commission of the alleged fault . Indeed, the court hearing an action to make good a debt must determine whether the manager was aware of the debtor's situation, and whether he or she took the necessary measures.

The omission, for several months, of the declaration of cessation of payments cannot be the result of simple negligence, since the manager, who could no longer ignore the delicate, if not totally compromised, situation of the company, did not take the necessary measures to put an end to it, and showed a total inertia which characterizes a voluntary and conscious attitude of not facing up to the management difficulties and the obligations they imply . Similarly, the failure to declare cessation of payments, in order to reduce the parent company's financial exposure, cannot be analyzed as simple negligence on the part of the manager when an e-mail received from his lawyer, listing the information and documents required to prepare a declaration of cessation of payments, establishes his knowledge of the debtor company's situation .

Managers who allow the company's loss-making activities to continue for many months, without having sufficient cash to cover them , while being aware of the impossibility of receivership, are not committing simple negligence either, but mismanagement for which they are liable . The same applies to a manager who builds up cash by failing to pay suppliers on time or at all, and by failing to pay social security and tax debts, who pays no attention to accounts receivable management, who uses services billed by a company he or she manages, and who participates in a dividend distribution contrary to the company's interests . Similarly, a manager who cannot be unaware of the importance of declarations and the consequences of failure to declare in view of the tax audit procedure notified to him, and who does not honor the claims in question, cannot invoke simple negligence, since this attitude is voluntary and conscious . Nor can a manager plead simple negligence when he deliberately failed to react to a subordinate's failure to comply with hygiene rules for two years, in order to save money , or when he deliberately failed to collect invoices for worksites for which stock had been ordered, or at the very least ordered too many goods in relation to the contracts entered into, at a time when the company's liabilities were increasing .

Lastly, the court hearing the case will check whether the fault in question is the result of repeated conduct, in which case it cannot be a matter of simple negligence. In fact, the preparation of irregular and non-proving accounts in order to benefit from the margin tax regime instead of that of intra-Community acquisitions, constitutes a management error which goes beyond simple negligence when it is of a systematic nature . The same applies to recurrent non-payment of current tax and social security contributions .

On the other hand, a manager who commits his company to a business based on a single customer is merely negligent, and cannot be held liable for a shortfall in assets . Another example of simple negligence is the distribution of all profits to the debtor company's holding company, which deprived the latter of cash at a time when its “profitability” was lacking , or the failure of a co-manager to keep regular accounts, when this is in fact attributable to the other manager .

L. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernization of economic life, known as the “Sapin 2” law.

Cass. com., 5 December 2018, LawLex202300008455JBJ (LJ); 5 September 2018, LawLex202200010995JBJ(LJ).

Cass. com., 23 September 2020, LawLex202300008471JBJ (LJ).

CA Nîmes, 12 April 2023, LawLex202300007885JBJ (LJ).

CA Versailles, 6 July 2021, LawLex202300008790JBJ (LJ).

Cass. com., 13 April 2022, LawLex202200002464JBJ (LJ).

Cass. com., 10 July 2019, LawLex202300008479JBJ (LJ).

Cass. com., 17 June 2020, LawLex202300008472JBJ (LJ).

Cass. com., 3 February 2021, LawLex202100001760JBJ (LJ).

Cass. com., 5 February 2020, LawLex202100006161JBJ (LJ); LawLex202300008456JBJ (LJ); LawLex202200009806JBJ (LJ); LawLex202300008458JBJ (LJ); CA Douai, 24 November 2022, LawLex202300007882JBJ (LJ); Versailles, 20 February 2018, LawLex202100001642JBJ (LJ); CA Angers, 18 January 2022, LawLex202200010150JBJ (LJ).

Cass. com., 5 February 2020, LawLex202300008457JBJ (LJ); Cass. com., 8 April 2021, LawLex202200009805JBJ (LJ).

CA Paris, 16 September 2021, LawLex202200010562JBJ (LJ).

CA Versailles, 13 November 2018, LawLex202100001761JBJ (LJ); Cass. com.., 17 June 2020, LawLex202300008477JBJ (LJ), holding that the continuation of a loss-making activity by an experienced manager while the operating result was negative, that the balance of the everyday account was in debit despite disposals of fixed assets, that the warning signs had multiplied due to the rejection of bad checks exceeding the authorized overdraft, that the credit institution refused to open a loan, that the statutory auditor had threatened to express reservations about the accounts and was planning to initiate a warning procedure in the same year, cannot justify the failure to take the necessary restructuring measures by simple negligence.

Cass. com., 26 February 2020, LawLex202200010827JBJ (LJ).

CA Douai, 24 November 2022, LawLex202300007882JBJ (LJ).

Cass. com., 17 June 2020, LawLex202300008477JBJ (LJ).

Bankruptcy Law

980. Intentional element

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980. Intentional element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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