Bankruptcy Law

According to Article L. 622-13, V of the Commercial Code, “[i]f the receiver does not use the option of continuing the contract or terminates it under the conditions of II or if termination is pronounced pursuant to IV, the non-performance may give rise to damages for the benefit of the other party, the amount of which must be declared as a liability”. Non-performance of the debtor's obligations u …

Compensation for breach or non-performance

According to Article L. 622-13, V of the Commercial Code, “[i]f the receiver does not use the option of continuing the contract or terminates it under the conditions of II or if termination is pronounced pursuant to IV, the non-performance may give rise to damages for the benefit of the other party, the amount of which must be declared as a liability”. Non-performance of the debtor's obligations under a continuing contract gives rise, for the benefit of the other party, to a claim for damages to be declared as a liability of the insolvency procedure , whereas non-performance of the debtor's commitments prior to the opening judgment only gives the right to report the liability in accordance with Article L.622-13, I, paragraph 2.

The termination ipso jure resulting from the silence of the receiver for one month following his formal notice to take a decision on the continuation of a contract confers the same advantage on the other party, provided that a clause in the contract provides for compensation in the event of early termination . Compensation resulting from the non-continuation of the contract by the receiver cannot be accepted when the clause stipulating does not refer to the hypothesis of the non-continuation of the contract . This is the case where the clause only provides for their payment only in the event of termination of the contract on the initiative of the client without fault on the part of the project manager, a situation which cannot be assimilated to the termination ipso jure which results from the silence of the receiver after formal notice to opt for the continuation or not of the contract . In other cases, the other party to the contract may report the compensation for termination of contracts that are not being pursued as a liability of the debtor, provided that the penalty clause determining the amount is not contrary to the rule of equality of creditors .

In the absence of a formal notice, the waiver by the receiver of the continuation of a current contract does not result in the termination of the agreement ipso jure on his initiative but confers on the contracting party alone the right to have it declared in court and to report his claim for compensation for termination as a liability in the insolvency procedure . However, the lessor cannot obtain payment of compensation for termination of the agreement when, having merely noted the termination and requested the return of the leased goods, it does not demonstrate that it has given formal notice to the legal representative to decide whether or not to continue the agreement .

The contracting parties have a period of one month from the date of termination ipso jure, or from the notification of the decision declaring the termination, to report their claim as a liability .

See in particular Cass. com., 11 May 1999, LawLex202100002297JBJ (RJ).

CA Aix-en-Provence, 19 December 2019, LawLex202100005079JBJ (RJ).

Cass. com., 15 May 2019, LawLex202100002315JBJ (S).

CA Toulouse, 25 February 2019, LawLex202100005087JBJ (LJ).

Cass. com., 8 March 2017, LawLex202100003327JBJ (LJ).

Cass. com., 1 March 2016, LawLex202100003320JBJ (RJ).

Cass. com., 16 March 2010, LawLex202100003307JBJ (RJ).

Bankruptcy Law

107. Compensation for breach or non-performance

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107. Compensation for breach or non-performance

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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