Bankruptcy Law

Under Article L. 622-13, III of the Commercial Code, the ongoing contract is terminated ipso jure"[a]fter a formal notice to take a decision on the continuation of the contract has been sent by the other party to the receiver and has remained unanswered for more than one month". Although no formalities are provided for, a request from a co-contractor concerning the procedure to be followed for cla …

Formal notice of the receiver or the debtor

Under Article L. 622-13, III of the Commercial Code, the ongoing contract is terminated ipso jure"[a]fter a formal notice to take a decision on the continuation of the contract has been sent by the other party to the receiver and has remained unanswered for more than one month". Although no formalities are provided for, a request from a co-contractor concerning the procedure to be followed for claims prior and subsequent to the date of the opening of the debtor's collective proceedings is not considered to be a formal notice of the receiver to exercise the option to continue the contract . Similarly, the order to pay a rental arrears, denounced by the lessor, who specifies that he intends to avail himself of an assignment clause in the leasing contract, does not constitute formal notice .

The text provides that before the expiration of the one-month period, the bankruptcy judge may, in accordance with Article L. 622-13, III, grant the receiver a shorter period or an extension, which may not exceed two months, in which to decide. The request for an extension must be presented and obtained within one month of the formal notice . The court registrar shall notify the other party of the decision of the bankruptcy judge granting the extension, while the latter shall, at the request of any interested party, declare the termination of the contract ipso jure where the formal notice has remained unanswered at the expiry of the period granted .

The renunciation by the receiver of the continuation of an ongoing contract is irrefutably presumed after a formal notice has remained unanswered for more than a month , even if the receiver has paid the rent due under the lease during the option period granted by the bankruptcy judge . However, this does not entail its termination . The debtor's co-contractor acquires the right in this case to have the contract terminated by the court .

In the absence of the appointment of a receiver, as the debtor holds the option under Article L. 627-2 of the Commercial Code, the formal notice must be sent to the debtor by registered letter with a request for acknowledgement of receipt, with a copy to the legal representative . Article R. 627-2 of the Commercial Code specifies that the legal representative must, without delay, inform the debtor and the counterparty of his opinion and adds that if the debtor fails to respond within fifteen days, the legal representative must inform the debtor of his opinion. Article R. 627-2 of the Commercial Code specifies that the legal representative must, without delay, inform the debtor and the other party of his opinion and adds that, in the absence of a response within fifteen days of receipt by the debtor of the formal notice, the latter may refer the matter to the bankruptcy judge. The referral to the bankruptcy judge suspends the one-month delay for response, provided for in 1° of III of Article L. 622-13. The court registrar shall inform the other party of the referral and of its suspensive effect. Silence kept by the debtor for more than one month is equivalent, as when a receiver is appointed, to renunciation of the continuation of the contract .

CA Paris, 28 February 2008, LawLex202100003204JBJ (RJ).

Cass. com., 17 February 2015, LawLex202200000492JBJ (LJ).

Cass. com., 4 February 1992, cited above.

Cass. com., 4 February 1992, LawLex202200001213JBJ (RJ) ; 11 December 1990, LawLex202200001212JBJ(RJ) ;

Cass. com., 20 May 1997, LawLex202100003376JBJ (RJ).

Cass. com., 11 December 1990, cited above.

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

Bankruptcy Law

97. Formal notice of the receiver or the debtor

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97. Formal notice 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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