Bankruptcy Law

Pursuant to Article L. 622-24 of the Commercial Code, “[from] the publication of the judgment, all creditors whose claims arose prior to the opening judgment, with the exception of employees, shall send the declaration of their claims to the legal representative within the deadlines set by decree approved by the Council of State”. The date of birth of the claim, which is a criterion for distinguis …

Declaration of claims arising prior to the opening judgment

Pursuant to Article L. 622-24 of the Commercial Code, “[from] the publication of the judgment, all creditors whose claims arose prior to the opening judgment, with the exception of employees, shall send the declaration of their claims to the legal representative within the deadlines set by decree approved by the Council of State”. The date of birth of the claim, which is a criterion for distinguishing between creditors who are required to declare and those who are exempt from this formality, is the date of its generating event, i.e. the date of performance of the characteristic obligation, and not the date on which it becomes due . Thus, the royalty provided for in a contract of successive performance constitutes a claim relating to the insolvency procedure for the service relating to the period subsequent to the opening judgment and an earlier claim, subject to declaration as a liability, for that relating to the period preceding it, whatever the date on which the royalty became due .

The operative event differs according to the nature of the claim in question. In the case of a claim arising from a contract of sale or a gift, the date that makes it possible to determine whether it is a prior or subsequent claim is the date of signature of the deed. Consequently, claims arising from contracts of sale concluded before the judgment opening the procedure must be declared as liabilities of the procedure , as well as claims for arrears arising from a gift contract concluded before the opening procedure, even if they matured after the latter . In addition, the event giving rise to the claim arising from a loan contract is the acceptance of the offer, so that the claim for repayment of a real estate loan for which the offer was accepted prior to the opening of the insolvency procedure must be declared, even if the funds were remitted to the borrower after the opening of the procedure . According to the Court of Cassation, the event giving rise to a claim for damages resulting from a criminal offense occurs on the day the damage is sustained . Similarly, a request for the delivery of administrative documents presented by the lessee after the opening of the seller's insolvency procedure, which relates to an obligation to do something that can be resolved in damages in the event of non-performance, is subject to the procedure for the declaration of claims, as long as the event giving rise to the claim occurred before the opening of the insolvency procedure .

The claim arising from a loan contract granted to a partnership must be declared as a liability in the insolvency procedure of its partners, even if it predates the procedure opened against the legal entity, since the partners are indefinitely liable to the creditor for the partnership in the event of the latter's prior vain pursuit .

Similarly, a creditor who demands the return of funds held on his behalf by the debtor may do so only by declaration of his claim and not by way of a claim for the restitution of property . In this respect, a creditor to whom the sums or securities received in his name or on his behalf by the debtor have not been remitted has a claim for restitution, which may be declared as a liability of the debtor, without harm to the implementation of the financial guarantee . Finally, as long as it does not constitute a maintenance claim, the claim of a wife against the undivided property constituted with her husband in insolvency procedure must be declared .

On the other hand, the creditor of a company placed in insolvency procedure does not have to declare his claim to the proceedings if his payment was made prior to the opening judgment . The lessor is also not required to declare his claim to his lessee's insolvency procedure when the lessee has deposited the sums due in respect of rent and occupancy rents definitively established by a court decision rendered before the opening judgment . In the absence of a creditor/debtor relationship, the beneficiary of a security interest granted to guarantee the debt of a third party may not declare his claim to the liability of the grantor either, since he cannot act in payment against the grantor .

Cass. com., 19 December 2000, (LawLex not found in English), retaining the obligation to declare a prior claim but not immediately due.

Cass. com., 28 May 2002, (LawLex not found in English).

Cass. 1re civ., 23 May 2006, (LawLex not found in English).

Cass. com., 14 June 1994, (LawLex not found in English).

Cass. com., 12 July 2017, (LawLex not found in English).

Cass. com., 17 June 2020, (LawLex not found in English).

Cass. 3e civ., 23 May 2007, (LawLex not found in English).

Cass. 1re civ., 27 March 2007, (LawLex not found in English).

Cass. com., 11 February 2004, (LawLex not found in English).

Cass. com., 27 November 2019, (LawLex not found in English).

Cass. com., 10 January 2012, (LawLex not found in English).

Cass. com., 30 June 2004, (LawLex not found in English).

Cass. com., 4 February 2003, (LawLex not found in English).

Cass. com., 17 April 2019, (LawLex not found in English) ; 18 January 2017, (LawLex not found in English).

Bankruptcy Law

144. Declaration of claims arising prior to the opening judgment

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

Les notions juridiques connexes

144. Declaration of claims arising prior to the opening judgment

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

Les notions juridiques connexes

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