Bankruptcy Law

Under Article L. 622-13 of the Commercial Code, “[t]he receiver alone has the power to require performance of ongoing contracts by providing the promised service to the debtor's contracting party.” Thus, the court that opens a collective procedure cannot rule on the fate of an ongoing contract since this prerogative belongs only to the receiver . Moreover, in a safeguard procedure with the appoint …

Prerogative of the receiver or the debtor

Under Article L. 622-13 of the Commercial Code, “[t]he receiver alone has the power to require performance of ongoing contracts by providing the promised service to the debtor's contracting party.” Thus, the court that opens a collective procedure cannot rule on the fate of an ongoing contract since this prerogative belongs only to the receiver . Moreover, in a safeguard procedure with the appointment of a receiver, the debtor is not entitled to waive the continuation of a contract alone . In this case, the receiver alone is competent to continue or waive the contract, regardless of the nature of his mission .

In the absence of the appointment of a receiver, the Law of 25 January 1985  required the debtor to apply to the bankruptcy judge for authorization to continue existing contracts. Authorization was only requested to require performance of a contract, not to waive it . Thus, the debtor's decision to continue a current lease contract was null and void in the absence of prior authorization from the bankruptcy judge . Article L. 627-2 of the Commercial Code now provides that “[t]he debtor shall exercise, after receiving the assent of the legal representative, the option available to the receiver to continue current contracts and to request the termination of the lease pursuant to Articles L. 622-13 and L. 622-14. In the event of disagreement, the bankruptcy judge may be seized by any interested party”. In fact, the legal representative appointed in an insolvency procedure without a receiver cannot be held responsible for the irregular continuation of a lease contract, nor for the absence of its termination, where his assent was not sought by the debtor, the only person entitled to exercise the option in this case .

Whether the option is given to the receiver or the debtor, the Court of Cassation specifies that the option to continue current contracts never prevents to pursue an action for termination of a contract for non-performance of certain obligations .

Cass. com., 7 February 2012, LawLex202100002214JBJ (LJ).

See by analogy, Cass. com., 28 January 1997, LawLex202100005037JBJ (RJ).

CA Bordeaux, 4 August 2015, LawLex202100005081JBJ.

Law No 85-98 of 25 January 1985 on the receivership and court-supervised liquidation of companies, Art. 141.

Cass. com., 9 January 1996, LawLex202100005141JBJ (RJ) ; 22 October 1996, LawLex202100005167JBJ (RJ).

Cass. com., 6 May 1997, LawLex202100005076JBJ (RJ).

Cass. com., 5 February 2020, LawLex202100005164JBJ (RJ).

Cass. com., 28 May 1996, LawLex202100002309JBJ (RJ) ; 26 October 1999, LawLex202100002310JBJ (LJ).

Bankruptcy Law

96. Prerogative of the receiver or the debtor

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96. Prerogative of the receiver or the debtor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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