Bankruptcy Law

Within the framework of his missions, the receiver is likely to engage his civil liability in tort by virtue of Article 1240 of the Civil Code which provides that “[a]ny act of a person, which causes damage to another, obliges the person by whose fault it occurred to repair it”. For this purpose, it is necessary to characterize a fault, a damage and a causal link between the two.
The scope of his  …

Tort and criminal liability

Within the framework of his missions, the receiver is likely to engage his civil liability in tort by virtue of Article 1240 of the Civil Code which provides that “[a]ny act of a person, which causes damage to another, obliges the person by whose fault it occurred to repair it”. For this purpose, it is necessary to characterize a fault, a damage and a causal link between the two.

The scope of his liability must be modulated with regard to the scope of his mission. In fact, a receiver who has only been given a supervisory mission cannot be held liable for the wrongful execution or non-performance of the lease of the company's operating premises, which continued ipso jure as long as he did not take a decision on its continuation, since his main mission consists in establishing the financial balance sheet of the company and proposing a safeguard plan .

When he has been given a mission of assistance, he is personally liable in the event of unpaid debts if he does not ensure that the debtor is able to pay the amount of the acts for which he is assisting him , in particular if he allows the debtor to make commitments that are out of proportion to his financial faculties and does not oppose the continuation of relations with his creditor when the proposed plan does not allow for the payment of debts arising after the judgment of opening . Moreover, the engagement of his tort liability also depends on the form that his decision takes. The countersignature by the receiver of two order confirmation letters , or the affixing of his visa on them , are likely to engage his liability for fault in the event of unpaid invoices. On the other hand, circular letters addressed to the debtor's suppliers, assuring them of payment of invoices within eight and then thirty days, do not constitute a contractual guarantee by the receiver of payment of debts likely to engage his personal liability in the event of unpaid invoices . In the same way, the receiver does not incur liability for unpaid invoices when he has not stamped the orders placed and when, at the time of the continuation of commercial relations between the supplier and the debtor, it was not excluded that the latter would overcome his difficulties .

The fault of the receiver must be assessed on the date on which the debt arises . In fact, a receiver who approves orders for goods without verifying that the debtor company's cash flow will allow it to pay for the goods on the due date is not at fault, since on the date the orders were signed, there was an offer to take over the business with a commitment to pay the debts after the opening judgment .

Finally, the receiver is criminally liable under Article L. 654-12 of the Commercial Code when he or she uses the powers at his or her disposal in a manner contrary to the interests of the creditors or the debtor .

Cass. com., 7 October 2020, LawLex202100005058JBJ (S).

See in particular Cass. com, 14 May 2008, LawLex202100002249JBJ holding that a receiver engages his personal liability if he does not ensure that the orders for services he places with a chartered accountant can be paid in full; 5 October 1993, LawLex202100005055JBJ considering that the receiver is liable if he countersigns two letters confirming orders for supplies for the debtor without having personally ensured that the co-contractor will be able to be paid in view of the financial situation of the company.

Cass. com., 11 June 1996, LawLex202100005054JBJ (RJ).

Cass. com., 13 November 2002, LawLex202100002250JBJ (RJ).

Cass. com., 16 June 2004, LawLex202100002252JBJ (RJ).

Cass. com., 3 October 2006, LawLex202100005166JBJ (RJ).

Cass. com., 15 October 2002, LawLex202100005245JBJ (RJ).

Cass. com., 4 February 2003, LawLex202100002251JBJ (RJ).

See infra, Part 5, Title 4, Chapter 2, Section 3.

Bankruptcy Law

92. Tort and criminal liability

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

92. Tort and criminal liability

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise