Bankruptcy Law

In accordance with Article 1355 of the Civil Code, res judicata applies only to what is the subject of the judgment. The thing sought must be the same, the claim must be based on the same cause of action, it must involve the same parties, and it must be made by them and against them in the same capacity. In the absence of identity of parties, the admission or rejection of the claim in the first in …

Authority of res judicata

In accordance with Article 1355 of the Civil Code, res judicata applies only to what is the subject of the judgment. The thing sought must be the same, the claim must be based on the same cause of action, it must involve the same parties, and it must be made by them and against them in the same capacity. In the absence of identity of parties, the admission or rejection of the claim in the first insolvency procedure is not res judicata in the second insolvency procedure opened against the same debtor . The authority of res judicata is not acquired, as the contestation of a claim cannot be considered as settled when the judgment establishing it has been rendered null for having been pronounced in the context of enforcement procedure which should have been suspended by virtue of the principle of the stay of proceedings . On the other hand, the fact that the ordinance of the bankruptcy judge is vitiated by an irregularity does not prevent it from acquiring the authority of res judicata when it has not been appealed .

Several consequences are attached to the authority of res judicata. Indeed, as soon as the irrevocable decision admitting a claim to the liabilities is res judicata as to the date of birth of the declared claim, its anteriority with respect to the date of opening of the insolvency procedure can no longer be contested . The authority of res judicata attached to the ordinance admitting a claim to the liabilities of the insolvency procedure constitutes a ground of inadmissibility, which justifies the inadmissibility of the claim for payment of a sum with which the creditor's claim has been set off . The authority of res judicata extends to the nature of the security that accompanies the admitted claim, so that an unmentioned mortgage security can no longer be set up by the creditor . The authority of res judicata attached to an irrevocable decision admitting a claim to the liabilities of the liquidation of a civil law company is binding on its partners . However, it does not deprive a partner, sued in execution of his subsidiary obligation to pay the partnership debts, of the right to set up against the creditor the statutory limitation provided for in Article 1859 of the Civil Code, which is distinct from that resulting from the claim against the partnership and is specific to the creditor's action against the partner .

An ordinance by the bankruptcy judge admitting a claim as a preferential right is res judicata with respect to the guarantor , who cannot be ordered to pay a lesser sum than that admitted to take account of payments not taken into consideration by the bankruptcy judge . Conversely, the authority of res judicata attached to the ordinance of the bankruptcy judge in the insolvency procedure opened against the principal debtor, who has only admitted a mortgage claim in principal, may be claimed by his joint and several debtor . The joint and several debtor of a loan may, in this capacity, invoke against the bank the authority of res judicata attached to the decision of irrevocable admission of the claim to the liabilities of the debtor's insolvency procedure, for a lesser sum than that for which he is being sued .

On the other hand, the guarantor cannot ask to be discharged from his obligation because of the fault committed by the creditor since the res judicata effect of the decision admitting the claim and the publication of the statement of claims in the BODACC (Official Bulletin of Civil and Commercial Announcements), which he has not contested, limits his action to exceptions that are personal to him . In fact, the guarantor may always invoke the exceptions of lack of proof of the guarantee of the principal debtor's commitments under one of the accounts in question and of the nullity of his commitment for fraud . The guarantor may also invoke the creditor bank's failure to comply with its obligations towards him .  The guarantor can also invoke the rejection of the secured claim in the insolvency procedure of his co-sponsor, once the ordinance has become irrevocable, unless it is due to a personal cause of the latter . Similarly, the opposability to the guarantor of the decision to admit a claim to the liabilities of the principal debtor is held in check when the creditor's action against the guarantor, even if joint and several, is affected by the foreclosure on the date of the declaration of claim . In addition, in the absence of proof of publication in the BODACC of the notice of deposit at the registry of the statement of claims, the admission decision does not have the authority of res judicata with respect to the mortgage guarantor .

A decision admitting a claim for contractual indemnities as a liability is res judicata with respect to the debtor's joint and several tenant, as long as he has not appealed against it, so that the creditor can summon him for payment .

The res judicata decision rendered by the court having jurisdiction of the insolvency procedure in the relationship between the creditor and the debtor is also binding on the third party grantor, as to the existence and the amount of the claim accompanied by the security, if he has not exercised the recourse available to him under Article R. 624-8 of the Commercial Code . The admission by the bankruptcy judge of a claim to the debtor's liabilities, which is res judicata with respect to its existence and amount, unless the latter contests the statement of claims filed at the registry, has the effect of rendering inadmissible any subsequent contestation that he may raise concerning the same claim . The absence of a complaint by the commissioner for the execution of the plan within the 15-day period following the publication of the notice of deposit of the statement of claims declared as liabilities of the debtor, confers on the latter the authority of res judicata, which is an obstacle to the action for nullity of their registration . Finally, the authority of res judicata attached to the decision to admit a claim precludes an action for nullity brought with the aim of retroactively nullifying the real estate leasing contract that gave rise to it .

Cass. ass. plén., 10 April 2009, LawLex202200003158JBJ (RJ) ; Cass. com., 30 January 2019, LawLex202100001826JBJ (RJ).

Cass. com., 27 September 2017, LawLex202100002583JBJ (S).

Cass. 1re civ., 28 May 2009, LawLex202100002236JBJ (LJ).

Cass. com., 1st April 2008, LawLex202100002489JBJ (LJ) ; 25 November 2008, LawLex202100002235JBJ (LJ) ; 6 July 2010, LawLex202100002491JBJ (S) ; 18 November 2014, LawLex202100002229JBJ (LJ).

Cass. com., 16 October 2012, LawLex202100002238JBJ (RJ).

Cass. com., 22 February 2017, LawLex202100002243JBJ (LJ) ; 8 July 2008, LawLex202100002237JBJ (RJ).

Cass. com., 22 April 1997, LawLex202100001508JBJ (RJ).

Cass. com., 18 November 2014, LawLex202100002230JBJ (LJ).

Cass. com., 19 November 1996, LawLex202100001507JBJ (LJ).

Cass. com., 18 January 2017, LawLex202100002212JBJ (RJ).

Cass. com., 24 June 2003, LawLex202100002485JBJ (LJ).

Cass. com., 7 March 2006, LawLex202100002234JBJ (RJ).

Cass. com., 4 November 2014, LawLex201400001237JBJ (LJ).

Cass. com., 2 March 2010, LawLex202100002233JBJ (LJ).

Cass. com., 5 December 1995, LawLex202100002019JBJ (RJ).

Cass. com., 14 October 1997, LawLex202100001504JBJ (LJ).

Cass. com., 3 May 2011, LawLex202100001505JBJ (RJ).

Cass. com., 14 October 2008, LawLex202100002483JBJ (LJ).

Cass. com., 8 January 2002, LawLex202100002481JBJ (RJ).

Cass. com., 20 January 2021, LawLex202200003275JBJ (LJ).

Cass. com., 20 March 2019, LawLex202100001518JBJ (LJ).

Cass. com., 12 January 2010, LawLex202100002232JBJ (LJ).

Cass. com., 22 March 2011, LawLex202100002484JBJ (RJ).

Bankruptcy Law

203. Authority of res judicata

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

203. Authority of res judicata

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