Bankruptcy Law

The regime for non-contractual claims is considerably less legible than that for contractual claims, given the numerous hesitations in the case law and the diversity of situations. In fact, there are almost as many operative events as there are types of claims, and even within one category of claims, the Court of Cassation does not always succeed in harmonizing the solutions, which sometimes seem  …

Triggering event for non-contractual claims

The regime for non-contractual claims is considerably less legible than that for contractual claims, given the numerous hesitations in the case law and the diversity of situations. In fact, there are almost as many operative events as there are types of claims, and even within one category of claims, the Court of Cassation does not always succeed in harmonizing the solutions, which sometimes seem to be mainly dictated by considerations of expediency and the desire to punish either the creditor or the debtor.

For claims for refund, the operative event is the day of payment of the sum returned to the creditor. It is therefore immaterial when the cash agreement under which the creditor made the undue payment  is concluded, or when the ordinance for interim relief is issued , or when a cheque is cashed and subsequently returned . The event giving rise to a claim for refund of customs duties is the legal event giving rise to the obligation of restitution of these duties by the administration and not the refund itself .

However, for claims resulting from a court decision, even in the case of a claim for refund, the Court of Cassation first held that the triggering event is no longer on the day of payment but on the day of the decision, so that, in this case, the restitution claim falls under Article L. 622-17 of the Commercial Code when the decision was pronounced after the opening of the insolvency procedure . Similarly, the claim of the Trésor public (internal revenue service) resulting from sentences pronounced against debtors by the former Competition council, now the Competition Authority, for practices prior to the opening judgment, is considered to be posterior because it only exists since the sentencing decision to sentence . The claim for damages for abusive procedures is also a subsequent claim when the decision to condemn the debtor is itself subsequent to the opening judgment . The summons of the lessors to carry out work and to pay damages has also been considered as the event giving rise to the resulting claim, even if neighborhood disturbances persist after the opening judgment . Then, the Court of Cassation focused more on the date of the commission of the tortious acts than on the date of the judgment, considering that the claim for damages, which constitutes the support of an order for seizure and sale delivered after the opening judgment of the debtor's accounts, is of a posterior nature since it sanctions a misappropriation which is itself posterior . The claim due to the successful bidder for a building, arising from the occupation without right or title of this building by the debtor in insolvency procedure subsequent to the notification of the sale by auction judgment (jugement d'adjudication), falls within the provisions of Article L. 622-17 of the Commercial Code . The Criminal Chamber of the Court of Cassation has long considered that the triggering event of a claim for damages, which results in particular from customs fines and confiscations, is fixed at the date of the punished criminal acts . The French State's claim for damages against the debtor definitively convicted, on the basis of public prosecution, for acts of fraud in an organized gang, forgery and use, subsequent to the opening judgment, is a subsequent claim . However, the Commercial Chamber has adopted solutions that are in direct opposition to those of the Criminal Chamber, holding that punitive financial penalties arise with the constitutive decision that pronounces them, even if the offending acts predate the opening judgment , that the conviction of a partner in his capacity as manager, in respect of a transaction falling within the scope of the joint venture, gives rise, as of that date, to a claim against his co-partner, irrespective of the date of the dissolution of the partnership  or that, since the final rights and obligations of the parties arising from the performance of a public contract are determined by the drawing up of the final general statement of account or, in the absence of such a statement, by the decision of the administrative judge which determines the final balance of the sums due in respect of the performance or non-performance of this contract, the claim resulting from a decision subsequent to the opening of the debtor's insolvency procedure constitutes a subsequent privileged claim . However, more recently, the Court has once again considered that the event giving rise to the claim for compensation corresponds to the date of the sanctioned acts, in this case the misappropriation of funds . For the claim for costs and expenses resulting from the application of Article 700 of the Code of Civil Procedure, for which the debtor is liable, the Court considers that the operative event is the decision which rules on them .

For tax claims such as corporate tax  and income tax , the triggering event for the claim is the closing date of the accounting year and not the date of collection of the taxes. The triggering event for the tax claim relating to the contribution due in respect of the employers' contribution to the construction effort results from the expiry of the period allowed to the employer to make the investments provided for by law . The tax debts resulting from the obligation of the employer to pay the apprenticeship tax and the participation in the development of professional training in respect of salaries paid during the past year arise on the date on which the period allowed for making the expenses and investments in full discharge of the obligation expires, set at 31 December of the year in question . The date of birth of the contributions of liberal professionals, payable annually in advance, necessarily corresponds to 1 January  of the current year and covers the entire year, unless they are cancelled during the year . The triggering event for the real estate value added tax, which makes it possible to determine whether the tax administration's claim is subsequent to the opening judgment or whether it must be declared or not, is at the end of a five-year period during which the property must be intended for sale . The Trésor's claim arising from a prefectoral order, subsequent to the opening judgment, ordering the deposit of a sum relating to work to be carried out on the site operated by the debtor in order to restore it to its original state, also constitutes a subsequent claim . In addition, the operative event for a claim for contributions corresponds to the period during which it is due. This is the case for the URSSAF (Social Security Contribution Collective Office) contribution claim, which arises from the work period during which the wages were received  or for the claim relating to compensation paid, excluding any dismissal, to employees who have taken leave, which arises during the work period during which the leave was taken . Since the payment of lawyers' health and maternity insurance contributions is a legal obligation inherent to the practice of law, the resulting claim falls within the scope of Article L. 622-17 of the Commercial Code when this practice continues after the opening of the insolvency proceedings . On the other hand, the event giving rise to the claim for contributions collected by the CNBF (National Fund for the French Bar) is the existence of the lawyer's registration on a given date, i.e. the first of January of the current year, without there being any need to distinguish between the periods before and after the opening of the insolvency procedure .

Finally, the anxiety loss suffered by an employee exposed to asbestos does not result from the employer's breach of contract, but arises on the date on which the employer learns of the ministerial decree registering the debtor company's ship repair and construction activity on the list of establishments allowing the implementation of the ACAATA (Early retirement system for asbestos workers) .

Cass. com., 2 December 2014, LawLex202100002385JBJ (S).

Cass. com., 24 November 1998, LawLex202100002384JBJ (RJ).

Cass. crim., 5 February 1998, LawLex202100002436JBJ (LJ).

Cass. crim., 17 January 2007, LawLex202100002440JBJ (LJ).

Cass. com., 8 July 2014, LawLex202100002433JBJ (RJ).

Cass. com., 23 September 2014, LawLex202100002431JBJ (RJ).

Cass. com., 2 November 2016, LawLex202200002700JBJ (LJ).

Cass. com., 11 June 2002, LawLex202100002450JBJ (RJ) ; Cass. 3e civ., 12 June 2002, LawLex202100002451JBJ (RJ) ; 7 October 2009, LawLex202100002454JBJ (LJ).

Cass. com., 16 December 2008, LawLex202100002349JBJ (RJ).

Cass. com., 12 July 1994, LawLex202100002348JBJ (RJ) ; 14 January 2004, LawLex202100002355JBJ (LJ).

Cass. com., 25 May 1993, LawLex202100002363JBJ (RJ) ; 7 July 1998, LawLex202100002364JBJ (LJ).

Cass. com., 5 June 2017, LawLex202100002389JBJ (LJ).

Cass. com., 22 February 2017, LawLex202100002362JBJ (LJ).

Cass. com., 9 July 2013, LawLex202100002382JBJ (RJ).

Cass. com., 16 December 2008, LawLex202100002361JBJ (RJ).

Cass. com., 17 September 2002, LawLex202100002435JBJ (LJ).

Cass. com., 19 March 1991, LawLex202100002369JBJ (RJ).

Cass. com., 19 May 1992, LawLex202100002372JBJ (RJ).

Cass. 2e civ., 16 September 2010, LawLex202100002473JBJ (RJ).

Cass. com., 3 July 2012, LawLex202100002381JBJ (RJ).

Cass. soc., 2 July 2014, LawLex202100002445JBJ (LJ) ; 25 March 2015, LawLex202100002448JBJ (LJ).

Cass. com., 23 January 2007, LawLex202100002392JBJ (RJ).

Cass. com. 21 January 2003, LawLex202100002391JBJ (RJ); 28 April 2009, LawLex202100002393JBJ (LJ); Cass. 3e civ. 11 March 2014, LawLex202100002394JBJ (LJ). Comp. when the action in nullity enshrined in the court decision is based on the nullities of the suspect period, Cass. com. 20 January 2009, LawLex202100002024JBJ (RJ).

Cass. com., 4 March 1997, LawLex200400000526JBJ (RJ).

Cass. com., 11 June 2003, LawLex202100002457JBJ (LJ).

Cass. com., 7 December 2004, LawLex202100002439JBJ (RJ).

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Bankruptcy Law

175. Triggering event for non-contractual claims

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175. Triggering event for non-contractual claims

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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