Bankruptcy Law

In compliance with Article L. 622-8(3) of the Commercial Code, the debtor may propose to its creditors the substitution of equivalent guarantees for the guarantees they hold. The debtor does not have to demonstrate that the substitution of guarantees proposed to its creditors is imperative for the continuity of the plan, as long as it meets an actual need . On the other hand, a debtor who does not …

Substitution of guarantees

In compliance with Article L. 622-8(3) of the Commercial Code, the debtor may propose to its creditors the substitution of equivalent guarantees for the guarantees they hold. The debtor does not have to demonstrate that the substitution of guarantees proposed to its creditors is imperative for the continuity of the plan, as long as it meets an actual need . On the other hand, a debtor who does not demonstrate that the collateral he proposes to substitute for that enjoyed by his creditor constitutes equivalent security, where the creditor claims a difference in value of more than two million euros, must be dismissed from his claim . The debtor's obligation to propose a substitution of equivalent security to the creditor only applies in the context of an assignment of the secured asset under a plan and not when the debtor has suffered an expropriation .

The text specifies that in the absence of an agreement, the bankruptcy judge may order this substitution. However, the right of retainer resulting from a pledge with delivery that a creditor has duly acquired gives him the right to refuse the restitution of the thing legitimately withheld until full payment of his claim, so that when the pledge contract has provided for the possibility of substitution of goods with the agreement of the creditor, his right of retainer cannot be limited by the power conferred on the bankruptcy judge to impose a substitution of equivalent collateral . The appeal against the order of the bankruptcy judge is brought before the court of appeal. The trial courts have full discretion to assess the equivalence of the substitute guarantee that they impose on a creditor by virtue of the powers conferred on them by Article L. 622-8 .

CA Versailles, 8 March 2012, LawLex202200002691JBJ (S).

CA Paris, 26 May 2020, LawLex202200002694JBJ (RJ).

Cass. com., 4 July 2000, LawLex202100002270JBJ (RJ).

Cass. com., 20 October 2021, LawLex202200000497JBJ (S).

Bankruptcy Law

188. Substitution of guarantees

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188. Substitution of guarantees

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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