Bankruptcy Law

Insufficient assets are equal to the difference between the amount of prior liabilities definitively admitted and the amount of realized assets of the debtor legal entity . Its existence and amount are assessed on the date on which the court rules , and not on the expiry of the 45-day period following the cessation of payments , or on the date of the opening court ruling , or in consideration of a …

Assessment of the insufficiency of assets

Insufficient assets are equal to the difference between the amount of prior liabilities definitively admitted and the amount of realized assets of the debtor legal entity . Its existence and amount are assessed on the date on which the court rules , and not on the expiry of the 45-day period following the cessation of payments , or on the date of the opening court ruling , or in consideration of an active and passive situation established years earlier .

The existence of a shortfall in assets attributable to the manager cannot be deduced from the company's state of cessation of payments, but must be assessed in the light of the company's overall assets and liabilities . In order to determine the amount of insufficient assets, the court must only take into account liabilities arising prior to the court ruling opening the debtor's court-supervised liquidation . Furthermore, the verification of liabilities must be completed in such a way that the amount of admitted and verified liabilities is known , it being provided that the exemption from verification of unsecured claims does not preclude a liability action for insufficiency of assets, where this is otherwise established .

Article L. 651-2 of the Commercial Code does not require that liabilities be fully quantified and assets realized  in order to establish a lack of assets, as long as the lack of assets is certain . This is the case if the amount of the deficiency is not definitive due to the contestation of certain claims , provided that the parties do not contest the existence of residual liabilities not covered by the assets . For example, the amount of the shortfall in assets is certain when an undisputed liability is established, even though the statement of claims to be collected has been drawn up on the basis of the debtor's declarations alone, without any accounting document or debt collection instrument corroborating its existence . On the other hand, mention of the amount of liabilities declared and of assets made up of claims to be collected is not sufficient to characterize a definite shortfall in assets at the date of the court's decision .

The court must not take into account the conditions under which the liquidator realized the debtor company's assets , or any proceeds from the civil liability action brought at the same time against the statutory auditors . No reference should be made to the consolidated accounts of the group to which the debtor belongs , so there is no need to exclude intra-group guarantees and debts from the calculation . Similarly, where redundancies have taken place subsequent to the opening of the insolvency procedure, the resulting liabilities must be excluded from the calculation of the asset shortfall and cannot be charged to the managers , especially where their cost has been borne by the CGEA .

CA Versailles, 13 November 2018, LawLex202100001761JBJ (LJ).

Cass. com., 5 May 2021, LawLex202100002626JBJ (LJ).

CA Metz, 30 January 2018, LawLex202300008524JBJ (LJ).

CA Chambéry, 15 February 2022, LawLex202200010563JBJ (LJ).

Cass. com., 30 June 2015, LawLex202100001765JBJ (LJ).

Cass. com., 8 January 2002, LawLex202100001622JBJ (LJ).

Cass. com., 9 July 2002, LawLex202300010557JBJ (LJ).

Cass. com., 1 July 2020, LawLex202200010776JBJ (LJ).

Cass. com., 31 May 2011, LawLex202100001613JBJ (LJ).

Cass. com., 18 May 2016, LawLex202100000939JBJ (LJ).

CA Versailles, 20 February 2018, LawLex202100001642JBJ (LJ).

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

Cass. soc., 27 September 2011, LawLex202100001751JBJ (LJ).

Cass. com., 30 March 1999, LawLex202200009141JBJ (LJ).

Cass. com., 30 January 1990, LawLex202300010698JBJ (LJ).

Cass. com., 24 May 2018, LawLex202100001657JBJ (LJ).

Cass. com., 7 October 2020, LawLex202200008566JBJ (LJ); 18 March 2008, LawLex202200008578JBJ (LJ);28 April 1998,

LawLex202100004134JBJ (LJ); 28 February 1995, LawLex202200011539JBJ (LJ).

Cass. com., 3 October 2006, LawLex202100001764JBJ (LJ).

Cass. com., 5 November 2013, LawLex202100001766JBJ (LJ).

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

Bankruptcy Law

982. Assessment of the insufficiency of assets

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

982. Assessment of the insufficiency of assets

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise