Bankruptcy Law

Despite the opening of a safeguard procedure, the debtor may exercise his personal rights alone, that is, the rights and actions that are attached to his person, such as those relating to his family life. He or she may accept or renounce an estate alone  or bring an action for divorce alone or defend it and give up his or her undivided share in a jointly acquired property as a compensatory allowan …

Rights attached to the person of the debtor

Despite the opening of a safeguard procedure, the debtor may exercise his personal rights alone, that is, the rights and actions that are attached to his person, such as those relating to his family life. He or she may accept or renounce an estate alone  or bring an action for divorce alone or defend it and give up his or her undivided share in a jointly acquired property as a compensatory allowance . The divorce judgment which establishes such an abandonment is fully enforceable against the insolvency procedure . Moreover, the legal representative of the company that owns the property that was the marital home of a couple cannot, even if he has a legitimate interest, intervene in the divorce proceedings, since the spouses alone have the capacity to bring or defend in such an action .

The debtor may also exercise alone the actions and remedies against the decisions which are not related to the insolvency proceedings. He alone, and not the legal representative, may bring an action for compensation for damages resulting from a motor vehicle accident, which result from temporary functional deficit, suffering endured, permanent functional deficit and loss of amenity (préjudice d'agrément) . He may appeal, without the assistance of the receiver, against an interim ordinance for eviction for one year from a building he owned and which was sold to a third party, provided that his request for a stay of execution of this measure does not concern the management and disposal of his property . Moreover, the proceedings brought by an employee before the labor court (tribunal des prud'hommes) against his employer in connection with his employment contract are exclusively related to his person, even if he is subsequently subject to insolvency proceedings, and cannot be brought by the legal representative . The same applies to an action for recognition of the existence of an employment contract against the former Chairman of the Board to whom the company's insolvency proceedings have been extended .

The rights attached to the various functions that a natural person holds within the debtor company are also personal rights that it can exercise himself. Thus, the judgment opening insolvency proceedings against a natural person does not relieve him of his functions as legal representative of a company, so that the legal representative is not entitled to request the appointment of a temporary administrator for the company . Similarly, the legal representative of a partner in a civil law company (société civile) is not entitled to exercise the actions attached to its person, linked to his capacity as a partner or manager, concerning the assets and liabilities of the legal person, or to participate in collective decisions .

Finally, the tax authorities' formal notice to file a tax return must be addressed to the taxpayer himself and not to the legal representative designated in the context of the insolvency procedure, since he remains under a personal obligation to declare his income .

Cass. com., 3 May 2006, LawLex202100001037JBJ (LJ).

Cass. com., 20 October 2021, LawLex202100005897JBJ (LJ).

Cons. d'Et., 28 July 2017, LawLex202100003137JBJ (LJ).

Cass. com., 16 January 2019, LawLex202100001044JBJ (LJ).

Cass. 1re civ., 4 June 2007, LawLex202100001039JBJ (LJ).

Cass. com., 17 April 2019, LawLex202100002174JBJ (LJ).

Cass. com. 22 February 1994, LawLex202100005048JBJ. See also. Cass. com., 20 March 2019, LawLex202100001036JBJ holding that proceedings for the liquidation of a provisional penalty, which seek to obtain the eviction of the debtor from a residential building over which he has a right of enjoyment attached to his person, constitutes an action in which he can defend himself alone and which escapes the rule of discharge, even if the dispute also involves a significant claim on the other owners of the building.

Cass. soc., 31 January 2012, LawLex202100001038JBJ (LJ).

Cass. soc., 13 July 2004, LawLex202100001034JBJ (LJ).

Cass. com., 27 November 2001, LawLex202100001033JBJ (LJ).

Cass. com., 18 October 2011, LawLex202100001045JBJ (LJ).

Bankruptcy Law

83. Rights attached to the person of the debtor

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83. Rights attached to the person of the debtor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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