Bankruptcy Law

In accordance with Article L. 622-21, I, 1° of the Commercial Code, the opening judgment interrupts or prohibits any legal action by prior creditors and subsequent non-privileged creditors seeking to order the debtor to pay a sum of money. The principle of prohibition of actions for payment precludes, in particular, any judicial allocation of a property mortgaged by the debtor  and any interim pro …

Exclusion of financial penalties

In accordance with Article L. 622-21, I, 1° of the Commercial Code, the opening judgment interrupts or prohibits any legal action by prior creditors and subsequent non-privileged creditors seeking to order the debtor to pay a sum of money. The principle of prohibition of actions for payment precludes, in particular, any judicial allocation of a property mortgaged by the debtor  and any interim procedure for payment of a debt for residential rent, even if personal to the debtor . An action for damages for loss of use is also covered by the prohibition . In addition, an action brought against the debtor as security for the sums he was responsible for paying back following his divorce is subject to the prohibition if its purpose is to order him to pay sums of money for a reason prior to the opening of the insolvency procedure . This is also the case for a claim arising from a compensatory allowance .

A claim which, under the guise of an order to the debtor to perform an obligation, which necessarily results in damages in the event of non-performance, is considered to be for the payment of a sum of money and therefore contrary to the principle of the stay of individual lawsuits . A creditor may not obtain an order under penalty from the debtor to build a retaining wall , to demolish a structure , to stop work and to restore the creditor's plot of land  or water supply ponds , since, indirectly seeking payment of a sum of money for a cause prior to the opening of procedure, his action is subject to the principle of the prohibition of legal action. The action of a guarantor, which is based on the performance of an obligation to act in order to obtain from the debtor company an undertaking to pay a sum of money to the benefit of the creditor bank, is also subject to the principle of the stay of individual lawsuits . Similarly, an action for the fixation of the amount of penalty pronounced by a decision prior to the opening judgment is subject to the suspension of individual lawsuits if it entails an obligation for the debtor to pay a sum of money . The issuance and validation of a legal constraint against the debtor, after the opening of the insolvency procedure, cannot lead to the condemnation of the debtor to payment .

The public policy principle of the stay of individual lawsuits prohibits, after the opening of the insolvency procedure, the referral to the arbitral tribunal by a creditor whose claim originated prior to the opening judgment, without having first undergone the procedure of verification of claims . The stay of individual lawsuits, a rule of public policy in the international order, prohibits the court from granting an application for enforcement of an arbitration award ordering the debtor to pay various sums of money . 

Moreover, a judgment ordering the debtor to pay a sum of money, rendered after the proceedings have been interrupted and which has not been confirmed by the organs of the proceedings, must be deemed null and void . In addition, the prohibition of individual lawsuits constitutes a public policy ground for dismissal that can be raised in any case and must be raised ex officio by the court .

Cass. com., 28 June 2017, LawLex202100001588JBJ (LJ).

Cass. com., 23 October 2019, LawLex202100002582JBJ (LJ).

Cass. com., 6 June 1995, LawLex202100005201JBJ (RJ).

Cass. com., 21 January 2003, LawLex202100002459JBJ (RJ); 15 June 2011, LawLex202100002565JBJ (RJ).

Cass. com., 17 February 2015, LawLex202100005198JBJ (RJ).

Cass. com., 2 June 2004, LawLex202100002526JBJ (RJ).

Cass. 1re civ., 6 May 2009, LawLex202100005194JBJ (LJ).

Cass. com., 26 January 2010, LawLex202100002567JBJ (S).

Cass. 3e civ., 24 June 2021, LawLex202100006232JBJ ; Cass. com., 12 January 2010, LawLex202100005196JBJ(LJ) ; 17 February 2015, LawLex202100005206JBJ (LJ).

Cass. com., 18 February 2003, LawLex200500003855JBJ (LJ).

Cass. com., 29 May 2019, LawLex202100002503JBJ (LJ).

Cass. com., 13 June 2019, LawLex202100002691JBJ (LJ).

Cass. com. 9 July 1996, LawLex202100002515JBJ (RJ); 23 January 2001, LawLex202100005214JBJ (RJ),, holding that the request to replace the engine of a boat acquired from the debtor before the judgment of opening, an obligation to do which non-performance can only be resolved by damages, is equivalent to a request for payment of a sum of money

Cass. com., 17 June 1997, LawLex202100002517JBJ (LJ).

Cass. com., 23 November 2004, LawLex202100002543JBJ (RJ).

Cass. com., 22 March 2011, LawLex202100002542JBJ (RJ).

Cass. com., 17 October 2000, LawLex202100005213JBJ (RJ).

Bankruptcy Law

130. Exclusion of financial penalties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

130. Exclusion of financial penalties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise