Bankruptcy Law

According to Article L. 624-18 of the Commercial Code, the price or part of the price of movable property, tangible and intangible, which exists in kind, may be claimed if it has not been paid, settled in value, or compensated between the debtor and the buyer at the date of the opening judgment. The text refers to the hypothesis of the resale of the thing by the debtor before the price has been pa …

Claiming of the resale price of the property

According to Article L. 624-18 of the Commercial Code, the price or part of the price of movable property, tangible and intangible, which exists in kind, may be claimed if it has not been paid, settled in value, or compensated between the debtor and the buyer at the date of the opening judgment. The text refers to the hypothesis of the resale of the thing by the debtor before the price has been paid to the original seller. The right of claim is transferred to the resale price of the thing, which no longer materially appears in the debtor's patrimony.

In matters of price claims as well as property claims, the passage through a preliminary procedure before the receiver or, failing that, before the legal representative, constitutes a mandatory prerequisite . On the other hand, it is not required that the property whose price is claimed exists in kind in the debtor's patrimony on the date of the opening judgment , but only on the date of its delivery to the sub-purchaser . Thus, the resale, prior to the opening judgment, of certain goods that remain in their original condition does not prevent the claim to the price due by the sub-purchasers , provided that the resold goods were not the subject of any payment between the debtor and the sub-purchaser, either before or after the opening of the procedure .

Article L. 624-18 requires that the price has not been paid, settled in value, or compensated between the debtor and the buyer at the date of the opening judgment of the procedure. According to the Court of Cassation, the donation in payment made by the sub-purchaser does not constitute a method of payment which prevents the owner from reclaiming the price of the goods . Similarly, the entry in an account of a debt corresponding to the unpaid sale price of goods subject to a title retention clause does not constitute payment of this debt if the parties have not expressly expressed their desire to settle their relations by the mechanism of the current account .

The owner may claim the price of the property from the debtor , without it being necessary to distinguish whether or not the price was paid before the claim . On the other hand, where the price of the resale has been paid on the day of the claim, it must still be established that this payment is subsequent to the opening judgment . Where the debtor, after having resold the thing to a sub-purchaser, assigns his claim to the price to a forfeiter, the latter cannot take advantage of subrogation in the rights of its member to defeat the retention of title invoked by the original seller, which is enforceable against the insolvency procedure . Finally, the seller with reservation of title cannot claim the price from the debtor's factor, who is subrogated to the debtor's rights, when, on the day the claim is made, the resale price of the goods has been paid to the factor .

The owner may also claim the price of the object from the sub-purchaser. The seller of goods subject to a retention of title that are resold by the debtor to a third party may claim the part of the price still owed by the debtor and that is subrogated to the goods of which the debtor has remained the owner, as long as the sub-purchaser has not paid the price to the seller . The assignment of the claim following the resale of the goods by the debtor, invoked by a bank, cannot defeat the claim of the seller. The assignment of a claim following the resale of the goods by the debtor, invoked by a bank, cannot defeat the claim of the reserved seller, since the resale price is subrogated to the goods of which he remained the owner .

By the effect of real subrogation, the original seller is entitled to claim his property from the sub-purchaser, without the sub-purchaser being able to raise the defences that he could have raised against the debtor , such as the defectiveness of the equipment delivered .  Where the sub-purchaser is himself subject to insolvency procedure, the claimant's action must be considered as a personal action and not as a real action, i.e., as an action for payment, which can only be rejected in the case of claims prior to the opening judgment .

In accordance with Article R. 624-16 of the Commercial Code, in the event of a claim on the price of the goods, the corresponding sums paid by the sub-purchaser after the opening of the procedure must be paid by the debtor or the receiver to the legal representative. The latter is then responsible for remitting them to the claimant up to the amount of his claim. The legal representative must pay to the claimant subrogated to the debtor's rights only the amount paid to him after the opening of the procedure by the sub-purchaser or a third party subrogated to the debtor's rights against the sub-purchaser .  The claim to the sale price of goods resold by the debtor should be allowed in priority to any other claim, where it is established that the price was paid after the opening of the insolvency procedure . The sums paid by the sub-purchaser after the filing of his action for reclamation may only be attributed to the owner of the thing if they were paid to the debtor before the decision was made in favor of the claimant .

Lastly, a waiver of the claim to the price of recovered parts does not necessarily mean a waiver of the claim to the price of all the other parts .

Cass. com., 21 June 2015, LawLex202100003664JBJ (LJ).

Cass. com., 5 October 1993, LawLex202100003640JBJ (RJ).

Cass. com., 27 June 1989, LawLex202100003644JBJ (LJ).

Cass. com., 10 July 2001, LawLex202100003645JBJ (RJ).

Cass. com., 5 January 1999, LawLex202100003642JBJ (RJ), noting the refusal of the sub-purchaser to accept the bill of exchange drawn by the debtor.

Cass. com., 20 June 1989, LawLex202100001734JBJ (LJ).

Cass. com., 18 January 2011, LawLex202100001728JBJ (LJ).

Cass. com., 5 juin 2007, LawLex202100003667JBJ (LJ).

Cass. com., 6 October 2009, LawLex202100003666JBJ (LJ).

Cass. com., 24 January 2018, LawLex202100001729JBJ (LJ).

Cass. com., 5 December 2018, LawLex202100001727JBJ (LJ).

Cass. com., 20 September 2005, cited above.

Cass. com., 14 juin 2017, LawLex202100003641JBJ (RJ).

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

Cass. com., 3 November 2015, LawLex202100001703JBJ (RJ).

Cass. com., 14 May 2008, LawLex202100003643JBJ (LJ).

Cass. com., 30 May 2006, LawLex202100003662JBJ (LJ).

Cass. com., 30 May 2006, cited above ; 20 September 2005, LawLex202100003396JBJ (LJ).

Cass. com., 3 December 2003, LawLex202100001731JBJ (RJ).

Cass. com., 26 June 2001, LawLex202100003404JBJ (RJ) ; 7 April 2009, LawLex202100003663JBJ (RJ) ; 24 April 2007, LawLex202100003646JBJ (LJ) ; 2 March 2010, LawLex202100003658JBJ (LJ) ; 7 November 2018, LawLex202100003668JBJ (RJ).

Bankruptcy Law

221. Claiming of the resale price of the property

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221. Claiming of the resale price of the property

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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