Bankruptcy Law

Pursuant to Article L. 622-17, I of the Commercial Code, subsequent claims that regularly arise after the opening judgment for the purposes of the procedure or the observation period, or in consideration of a service provided to the debtor during this period, are paid when due . The legal representative must therefore pay, when due, a subsequent privileged claim, without having to check whether he …

Payment on time and individual proceedings

Pursuant to Article L. 622-17, I of the Commercial Code, subsequent claims that regularly arise after the opening judgment for the purposes of the procedure or the observation period, or in consideration of a service provided to the debtor during this period, are paid when due . The legal representative must therefore pay, when due, a subsequent privileged claim, without having to check whether he has the necessary funds to pay all the creditors .

In the absence of payment on the due date, claims are in principle settled in the order established by II of Article L. 622-7. However, the case law accepts that a later creditor, who is not deprived of his individual right of action, may act in payment of a claim that has not been paid on its due date  or obtain a writ of enforcement and have it enforced irrespective of the order in which the privileges are exercised . As in the old law, payment becomes once again the "price of the race": the first seizing party is the first to be paid, regardless of the order of his claim, i.e. regardless of the existence of other claims benefiting from a preferential rank . Indeed, he is entitled to exercise his right of individual action to ensure the recovery of a claim that arose after the judgment opening the insolvency procedure and that has not been paid when due, without being able to oppose the creditors' payment order when they have not taken the initiative of individual actions .

Since the right to be paid on the due date is inextricably linked to the right to sue, the tax collector who holds a debt that was legally created after the opening judgment and has remained unpaid may issue a third-party notice to the legal representative in order to obtain the recovery of his debt , unless the latter has paid the sums collected in the exercise of his duties to the Caisse des dépôts et consignations . This deposit renders the funds exempt from seizure, so that they escape individual proceedings by subsequent creditors and are allocated to the settlement of creditors according to their rank . The creditor may also seize the funds in the hands of the notary responsible for the sale of the debtor's property, and pay himself , or proceed with a seizure on the debtor's patrimony .

The exercise of the individual right of action is not conditional on the establishment of a list of claims that have not been paid, nor on the entry of the claim on this list . Indeed, the absence of registration of a claim on the list of subsequent claims has no effect on the creditor's right to sue before the courts, when his claim falls within the provisions of Article L. 622-17 of the Commercial Code .

See for an application, Cass. com. 15 October 1991, LawLex202200002527JBJ (RJ).

Cass. com., 10 July 1990, LawLex202100005138JBJ (RJ).

Cass. com., 6 July 1993, LawLex202100002492JBJ (RJ).

Cass. com., 11 February 1997, LawLex202100005183JBJ (LJ) ; 22 April 1997, LawLex202100005185JBJ (LJ).

Cass. com., 28 June 2016, LawLex202100002488JBJ (LJ).

Cass. com., 20 March 2001, LawLex202100002501JBJ (RJ).

Cass. com., 9 May 2018, LawLex202100002463JBJ (LJ) ; 7 September 2010, LawLex202100002493JBJ (RJ) ; 6 October 2012, LawLex202100002490JBJ (LJ) ; 13 October 1998, LawLex202100005182JBJ (LJ).

Cass. com., 3 June 1997, LawLex202100005184JBJ (LJ).

Cass. com., 25 June 1996, LawLex202100002486JBJ (LJ) ; 20 June 1989, LawLex202100002482JBJ (RJ).

Cass. com., 5 May 1998, LawLex202100005186JBJ (LJ).

Cass. com., 22 May 2007, LawLex202100002495JBJ and LawLex202100002498JBJ (RJ).

Cass. com., 11 February 1997, cited above.

Bankruptcy Law

179. Payment on time and individual proceedings

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179. Payment on time and individual proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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