Bankruptcy Law

Under Article L. 624-16 of the Commercial Code, the claim to movable property can only be made if it existed in kind, in the hands of the debtor, on the date of the opening judgment and not, as many claimants have tried to argue, on the date of the action for recovery . Where the debtor has resold the property and the claim can only be made on the sale price, the goods must have existed in their i …

Existence in kind of the property claimed

Under Article L. 624-16 of the Commercial Code, the claim to movable property can only be made if it existed in kind, in the hands of the debtor, on the date of the opening judgment and not, as many claimants have tried to argue, on the date of the action for recovery . Where the debtor has resold the property and the claim can only be made on the sale price, the goods must have existed in their initial state, not on the date of the opening judgment of the insolvency procedure, but on the date of delivery to the sub-purchaser .

The condition of existence in kind means that the merchandise has been preserved in its initial state, i.e., without having undergone any transformation likely to alter its substance. The claimant of a stock of fry must therefore establish that he delivered it less than eighteen months before the opening judgment in order to prove that the goods claimed have not completed their maturation process and have not undergone irreversible transformation . Precious stones, whose setting makes it impossible to identify and individualize them, no longer exist in kind on the day of the opening of the insolvency procedure . Similarly, the slaughtering and cutting up of animals delivered to the debtor constitutes a transformation which prevents them from being considered to be in kind at the debtor's premises before the opening judgment . Nevertheless, not every operation performed on the thing is likely to be analyzed as a transformation that precludes the finding that it exists in kind. In fact, sawing and fitting operations, which do not affect the substance of the goods, do not call into question their existence in kind and do not prevent them from being claimed . The incorporation of musts brought in by cooperative partners into one another and the process of evolution and vinification of the crops brought in do not have the effect of transforming their substance, so that they may be considered to be in kind with the debtor despite their transformation . Similarly, the mere dyeing of yarns delivered by the seller, before any weaving operation, does not have the effect of transforming them and preventing their identification and claim .

The existence of goods in kind in the debtor's patrimony may be established even if they are physically held by a third party . The seller who claims an asset with a title retention clause is entitled to obtain its return, whether the debtor holds it on its premises or whether it is held by its legal representative elsewhere. A seller who claims property subject to a title retention clause is entitled to obtain its return, whether the debtor holds it on his premises or whether it is held by his legal representative on other premises . However, the claim of a movable asset, held by a third company, belonging to the same group of companies as the debtor company placed in insolvency procedure, is not admissible when the claiming owner does not establish that this sister company held it in kind on behalf of the debtor at the time of the opening of the insolvency procedure . Similarly, a car of which the debtor transferred possession to a third party in payment of the sale price of his previous vehicle, before the opening judgment, cannot be considered as being in the debtor's patrimony in kind on that date and cannot be the subject of a claim .

Proof of the existence in kind of the goods delivered may, in certain circumstances, prove delicate. This is the case where the goods claimed were in the course of manufacture on the date of the opening judgment: the owner making the claim cannot make up for their material non-existence on that date by the mere possibility of identifying them later . In the same way, the absence of restitution to the supplier of the goods entrusted to the debtor, or of invoicing for them by the latter, is not sufficient to establish that they still exist in kind in his inventory on the day of the opening of the insolvency procedure . 

Proof is nevertheless facilitated by the obligation imposed on the debtor, by Article L. 622-6 of the Commercial Code, to draw up an inventory of his assets, which mentions the assets he holds that may be claimed by a third party . The text specifies, in paragraph 5, that the absence of an inventory does not prevent the exercise of the action for recovery. The case law goes even further by establishing sometimes a lightening of the burden of proof, sometimes its reversal, when the inventory has not been drawn up or proves to be incomplete, or even when the bodies of the procedure oppose it. Thus, a seller under a title retention clause, who has attempted, in order to avoid any dispute, to have an inventory made of the stock of goods still held by the debtor immediately after the opening judgment, which the latter has opposed, may be content, in order to establish the existence of his goods in kind, to provide an estimate of their daily consumption by the debtor . When the legal representative refuses to communicate the inventory of the debtor's goods, the claimant may prove their existence in kind by the mere production of the purchase orders and delivery notes . Other decisions consider that in the presence of an incomplete, summary or unusable inventory, which is equivalent to an absence of inventory, the proof that the claimed property, previously held by the debtor, no longer exists in kind on the day of the opening judgment, is incumbent upon the legal representative  and/or the debtor, failing which the claim must be granted . The burden of proof is reversed when the inventory drawn up by an auctioneer does not itemize the spare parts claimed by a creditor, who benefits from a title retention clause, although the latter has provided a precise listing , and when the inventory of the debtor's assets does not mention the details of the tires sold by a creditor although he has addressed a request to the legal representative . Bottles of wine stored at the home of a debtor subject to a safeguard procedure, who does not demonstrate, in the absence of an inventory drawn up within eight days of the opening judgment, that they were no longer in his possession at that date, may be claimed by their owner . However, the failure of the receiver to draw up an inventory does not exempt the seller from establishing the identity between the goods he has delivered and those existing in kind on the day of the opening judgment .

Cass. com., 15 March 2005, LawLex202100001665JBJ (RJ) ; 29 November 2016, LawLex202100001666JBJ (S).

Cass. com., 3 January 1995, LawLex202100001726JBJ (RJ).

Cass. com., 8 March 2017, LawLex202100001706JBJ (LJ).

Cass. com., 4 May 2017, LawLex202100001704JBJ (LJ).

Cass. com., 31 May 2016, LawLex202100003406JBJ (LJ).

Cass. com., 28 September 2004, LawLex202100003635JBJ (RJ).

See for an application, Cass. com., 17 May 2017, LawLex202100003409JBJ (RJ).

Cass. com., 26 June 2001, LawLex202100003404JBJ (RJ).

Cass. com., 13 April 1999, LawLex202100003403JBJ (LJ).

Cass. com., 1st December 2009, LawLex202100001542JBJ (LJ).

CA Bordeaux, 22 November 2021, LawLex202200000711JBJ (S) ; Cass. com., 25 October 2017, LawLex202100001653JBJ (LJ).

CA Grenoble, 8 October 2020, LawLex202200000712JBJ (RJ).

Cass. com., 11 June 2014, LawLex202100001658JBJ (LJ).

Douai, 5 June 2014, LawLex202100005233JBJ (LJ).

CA Bordeaux, 22 November 2021, cited above.

Cass. com., 15 December 1992, LawLex202100003402JBJ (RJ).

Cass. com., 20 October 2009, LawLex202100003408JBJ (RJ).

Cass. com., 22 March 1994, LawLex202100001659JBJ (RJ).

Cass. com., 26 February 1991, LawLex202100001655JBJ (RJ).

Cass. com., 11 July 2006, LawLex202100001656JBJ (LJ).

Cass. com., 6 March 1990, LawLex202200003841JBJ, emphasizing however that the claimant must compensate the debtor for the dyeing and rewinding operation.

Cass. com., 3 December 1996, LawLex202100001701JBJ (LJ).

Cass. com., 10 May 2012, LawLex202100001702JBJ (LJ).

Bankruptcy Law

209. Existence in kind of the property claimed

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

209. Existence in kind of the property claimed

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise