Bankruptcy Law

The legal representative  appointed by the court has sole standing to act on behalf of and in the collective interest of the creditors, in accordance with Article L. 622-20(1) of the Commercial Code. Thus, a partner and, in general, a creditor, are not entitled to bring an action against a bank for aggravation of liabilities . Similarly, the debtor is not entitled to bring an action against his ba …

Monopoly of the legal representative or the commissioner for the execution of the plan

The legal representative  appointed by the court has sole standing to act on behalf of and in the collective interest of the creditors, in accordance with Article L. 622-20(1) of the Commercial Code. Thus, a partner and, in general, a creditor, are not entitled to bring an action against a bank for aggravation of liabilities . Similarly, the debtor is not entitled to bring an action against his bank for abusive maintenance, and then for the sudden termination of his credit facilities, and for the restitution of a sum unduly taken from his current account, since, on the one hand, these faults are prejudicial only to the creditors, whose interests can be defended only by the legal representative , and, on the other hand, he does not justify a damage distinct from the latter . Only the legal representative has the right to act in compensation for the collective damage linked to the loss of company capital . However, he does not have the right to bring an action against the partners of a civil partnership, since they remain personally liable to the company's creditors, even in the event of insolvency proceedings .

The Court of Cassation considered that the legal representative did not have to specifically designate the creditors he represented, since he could legally only act in the interest of all . Consequently, he could not act in the personal interest of a creditor or a group of creditors such as, in matters of management leases, creditors with a debt security corresponding to sums necessary for the operation of the business , as referred to in Article L. 144-6 of the Commercial Code. Similarly, he could not act against the wife of a deceased businessman in the interest only of creditors holding a debt security corresponding to the continued operation of the business received in partition . For the same reason, he did not have the capacity either to oppose to the declaration of unseizability in the interest only of creditors whose rights arise, after its publication, on the occasion of the professional activity of the declarant , nor to proceed to the realization of an immovable which was the subject of a declaration of unseizability  or to proceed to the licitation-sharing of the latter . The Court of Cassation has, however, reversed its position and now considers that the creditors' representative may act to challenge the legality of the debtor's declaration of unseizability . Since it has defined the collective interest as the protection and reconstitution of the common pledge of the creditors , the Court of Cassation had to admit, for the sake of consistency, that the creditors' representative can act to contest the regularity of the declaration, such an action being aimed precisely at the protection and reconstitution of the common pledge of the creditors. Logically, this solution should extend to all actions aimed at reconstituting the common pledge, even if they seem to benefit only one category of creditors.

Pursuant to Article L. 626-25 of the Commercial Code, the court may appoint the receiver or the legal representative as commissioner for the implementation of the plan. In his new role, the latter is also empowered to initiate actions in the collective interest of the creditors. The commissioner for the execution of the plan is entitled to act, in the collective interest of the creditors, in compensation for the damage resulting from the decrease in the assets or the aggravation of the liabilities of the debtor, even if the loss of turnover complained of was partly manifested after the opening of the insolvency proceedings . Once appointed, the commissionner alone is also entitled to act for compensation for the collective loss resulting from the freezing of the claims of all the creditors, which is inherent in the insolvency proceedings .

Formerly “representative of creditors”.

Cass. com., 3 June 1997, LawLex202100005441JBJ (LJ).

Cass. com., 18 June 2013, LawLex202200001799JBJ (LJ).

Cass. com., 30 June 2015, LawLex202100002965JBJ (LJ)

Cass. com., 15 November 2016, LawLex202100001446JBJ (LJ); 15 November 2017, LawLex202200001919JBJ (LJ).

Cass. com., 2 June 2015, LawLex202100001543JBJ (RJ).

Cass. com., 26 January 2010, LawLex202100002934JBJ (RJ).

Cass. com., 21 June 2005, LawLex202100005607JBJ (RJ).

Cass. com., 5 January 1999, LawLex202100005444JBJ (RJ).

Cass. com., 27 May 2003, LawLex202100005604JBJ (RJ).

Cass. com., 23 November 2004, LawLex202100005614JBJ (LJ).

Cass. com., 24 January 2006, LawLex202100002950JBJ (LJ).

Cass. com., 16 March 1993, LawLex202100002962JBJ (LJ).

Cass. com., 9 November 2004, LawLex202100005446JBJ (LJ); 13 December 2005, LawLex202100005564JBJ(LJ).

Cass. com., 17 September 2013, LawLex202100004185JBJ (LJ).

Cass. com., 13 March 2012, LawLex202200001799JBJ (LJ).

Bankruptcy Law

114. Monopoly of the legal representative or the commissioner for the execution of the plan

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114. Monopoly of the legal representative or the commissioner for the execution of the plan

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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