Bankruptcy Law

The extension of proceedings based on the merger of assets and liabilities or the fictitious nature of a legal entity necessarily leads to the opening of a single insolvency procedure and does not allow the maintenance of separate proceedings , since it implies a global apprehension of the different assets and liabilities. The uniqueness of the procedure does not, however, allow the acts carried o …

Global understanding of the procedure and the assets and liabilities

The extension of proceedings based on the merger of assets and liabilities or the fictitious nature of a legal entity necessarily leads to the opening of a single insolvency procedure and does not allow the maintenance of separate proceedings , since it implies a global apprehension of the different assets and liabilities. The uniqueness of the procedure does not, however, allow the acts carried out before the extension judgment to be called into question, as long as the latter does not have retroactive effect to the day of the initial opening judgment . Nevertheless, in the event of a succession of statutes over time, the law applicable to all debtors is the one in force on the date of the main proceedings .

The principle of uniqueness of the insolvency procedure requires that all the companies concerned be placed in an identical situation . Once the merger of the assets and liabilities of the companies of a group has been established, these companies cannot be treated differently . While the uniqueness of the procedure does not eliminate the legal entity of each of the companies, nor create indivision between them , it does prohibit the court-appointed receiver from distinguishing between the operations on an asset-by-asset basis . It prevents the adoption of a continuation plan that concerns only one company without considering the fate of the assets and liabilities of the other . Similarly, a plan adopted jointly for several companies cannot be resolved with respect to only some of them because of the uniqueness of the procedure . The uniqueness also excludes the shareholders of one of the companies involved in the proceedings from acting against the others, due to a lack of interest to act , as they can no longer have opposing interests.

Cass. com., 28 May 2002, LawLex202100002139JBJ (RJ).

Cass. com., 28 September 2004, LawLex202100002156JBJ (LJ).

Cass. com., 21 September 2010, LawLex202100006539JBJ (LJ).

Cass. com., 1 October 1997, LawLex202100002154JBJ (LJ).

See in particular Cass. com., 17 February 1998, LawLex202100002142JBJ (RJ).

Cass. com., 30 June 2009, LawLex202100004163JBJ (RJ). See also Cass. 1re civ., 13 February 2001, LawLex202100004165JBJ (RJ).

Cass. com., 18 January 2005, LawLex202100002153JBJ (LJ).

Cass. com., 7 January 2003, LawLex202100002143JBJ (LJ).

Cass. com., 23 June 1998, LawLex202100004175JBJ (RJ).

Cass. com., 6 July 2010, LawLex202100006538JBJ (RJ).

Bankruptcy Law

54. Global understanding of the procedure and the assets and liabilities

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54. Global understanding of the procedure and the assets and liabilities

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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