Bankruptcy Law

Pursuant to Article L. 624-16(2) of the Commercial Code, the claim in kind may be exercised on movable property incorporated into another asset when the separation of such property can be effected without damage to it. It is up to the claimant, and not the debtor, to establish the existence in kind of the property claimed in the debtor's assets on the day of the opening of the insolvency property, …

Specific case of the claim of incorporated property

Pursuant to Article L. 624-16(2) of the Commercial Code, the claim in kind may be exercised on movable property incorporated into another asset when the separation of such property can be effected without damage to it. It is up to the claimant, and not the debtor, to establish the existence in kind of the property claimed in the debtor's assets on the day of the opening of the insolvency property, and to show that the separation of the tangible property incorporated into another asset can be carried out without damage .

The claim for a movable asset incorporated into another is admissible, provided that it is identifiable, separable and that its dismantling requires only a possible restoration, without risk of damage to the assets of the debtor company . Similarly, the claim made by the owner of a greenhouse delivered to the debtor in insolvency procedure and incorporated into real estate elements, the separation of which can be carried out without damaging the neighboring building, by sawing the posts at the height of the low walls so as not to create any damage, or by freeing and unscrewing the feet of the sealed posts to avoid any flight or deformation due to bad weather, is admissible . Engines sold with retention of title may be removed from the vehicles on which they are mounted without damage to each of the separate properties . Tires mounted on vehicles may be claimed as long as their removal is not likely to cause any damage to the tires, the wheels or the vehicles .

On the other hand, digital controls, the restitution of which would imply the disconnection of the cables, the extraction of the computer cards, the dismantling of the control panel, the disconnection and dismantling of the electric motors and the saving of the programs, cannot be considered, in view of the complexity of the operations, as being in kind at the time of the opening of the insolvency procedure . Similarly, the integration of clamps into a new assembly for which they have been specially designed and adapted and in which each of the elements has no utility other than in relation to the others and to the whole of which it forms part, which entails their incorporation into an assembly line, deprives them of existence in kind and prohibits any claim to their price . In addition, notwithstanding any clause reserving ownership, an climate control engineering contractor who has installed heating, ventilation, plumbing and sanitary equipment in the debtor's building cannot claim them once they have been incorporated into the work and no longer exist in kind .

Cass. com., 10 March 2015, LawLex202100001663JBJ (RJ). See also a contrario, Cass. com., 28 September 2004, LawLex202100003635JBJ (RJ).

Cass. com., 2 November 2016, LawLex202100001661JBJ (LJ).

Cass. com., 5 October 1993, LawLex202100003634JBJ (LJ).

Cass. com., 21 March 2006, LawLex202100001660JBJ (LJ).

CA Douai, 5 June 2014, LawLex202100005233JBJ (LJ).

Cass. com., 24 March 2004, LawLex202100001662JBJ (RJ).

Cass. com., 6 July 1993, LawLex202100003639JBJ (RJ).

Cass. com., 2 March 1999, LawLex202100003362JBJ (RJ).

Bankruptcy Law

210. Specific case of the claim of incorporated property

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

210. Specific case of the claim of incorporated property

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