Bankruptcy Law

In order to be covered by the provisions of Article L. 622-17 of the Commercial Code, subsequent claims must have arisen regularly, i.e. in compliance with the rules governing the distribution of the debtor's powers in safeguard procedure .
In the absence of the appointment of a receiver, which is the most common situation in safeguard procedure, the debtor retains its powers of management and adm …

Claim arising in compliance with the rules of division of powers

In order to be covered by the provisions of Article L. 622-17 of the Commercial Code, subsequent claims must have arisen regularly, i.e. in compliance with the rules governing the distribution of the debtor's powers in safeguard procedure .

In the absence of the appointment of a receiver, which is the most common situation in safeguard procedure, the debtor retains its powers of management and administration. Consequently, an URSSAF (Social Security Contribution Collection Office) claim, which arose from the debtor after the opening judgment, can benefit from the privileged treatment of Article L. 622-17 .

In the presence of a receiver, the claim for indemnity for paid leave and notice, due following dismissals ordered by the latter during the observation period, and the claim for contributions and late payment increases relating thereto necessarily constitute privileged claims . A claim for rent is also valid when it arises from a lease contract tacitly continued by the receiver, who has not handed over the keys to the lessor . Similarly, the landlord's claim due to the fault committed by the legal representative, in his capacity as such, after the judgment opening the insolvency procedure, must be paid on the due date .

Conversely, claims arising from agreements entered into by the debtor without the assistance of the receiver are not enforceable against the insolvency procedure if they did not arise regularly . The claim resulting from a transfer order irregularly given by the debtor without the assistance of the receiver, whose intervention was necessary for cash management operations, is not privileged either . Furthermore, a claim made after the judgment opening the safeguard is not in order when it results from a contract continued by the debtor without the assent of the legal representative .

Finally, the claim for fees of the lawyer who assists the debtor in the exercise of his own rights always arises regularly, since these fall outside the division of powers between the debtor and the bodies of the insolvency procedure .

For an application of the principle to a claim in tort, see Cass. com. 31 March 1998, LawLex202100002332JBJ (LJ).

Cass. com., 9 June 1992, LawLex202100005134JBJ (LJ) ; 2 February 1993, LawLex202100005133JBJ (LJ).

Cass. com., 2 May 1990, LawLex202100002375JBJ (RJ).

Cass. com., 2 April 1996, LawLex202200001220JBJ (LJ).

Cass. com., 31 March 1992, LawLex202100005155JBJ (LJ).

Cass. com., 29 February 2000, LawLex202100005158JBJ (RJ) ; 4 February 1992, LawLex202100002333JBJ (LJ).

Cass. com., 4 March 2014, LawLex202100005132JBJ (LJ).

CA Caen, 9 April 2019, LawLex202200000699JBJ (S).

Cass. com., 7 October 2020, LawLex202100006125JBJ (LJ).

Bankruptcy Law

176. Claim arising in compliance with the rules of division of powers

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176. Claim arising in compliance with the rules of division of powers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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