Bankruptcy Law

Under the terms of Article L. 626-11(1) of the Commercial Code, the judgment adopting the plan makes its provisions enforceable against everyone.
Since the Safeguard Act of 26 July 2005, with the exception of legal persons, co-obligors and persons who have granted a personal guarantee or who have assigned or transferred an asset as security may avail themselves of the provisions of the plan. This  …

Quasi-general enforceability

Under the terms of Article L. 626-11(1) of the Commercial Code, the judgment adopting the plan makes its provisions enforceable against everyone.

Since the Safeguard Act of 26 July 2005, with the exception of legal persons, co-obligors and persons who have granted a personal guarantee or who have assigned or transferred an asset as security may avail themselves of the provisions of the plan. This is the case even if their commitment predates the entry into force of the 2005 law, as long as the procedure was opened afterwards .

This rule must be combined with Article R. 511-7 of the Code of Enforcement Procedures, which requires a creditor authorized to take a protective measure against a personal guarantor, a natural person, to institute, within one month of the execution of the measure, on pain of lapse, procedure or to accomplish the formalities necessary to obtain an enforcement order. According to the Court of Cassation, Article L. 626-11 does not prevent the creditor from obtaining a writ of execution against the guarantor, but only prohibits him from enforcing it as long as the principal debtor complies with the safeguard plan . The creditor may therefore obtain a judgment against the guarantor even before his claim against him becomes due, without prejudging the amount that he may claim from the creditor in the event of the debtor's failure to pay the dividends under the plan, which has not yet been established . On the other hand, the joint and several guarantor of the debtor company, who provides his personal guarantee in order to facilitate the adoption of the continuation plan and its execution, can no longer claim the due dates of the said plan following its resolution, once his guarantee commitment has become due in its entirety .

Finally, a legal person guarantor cannot take advantage of the provisions of a safeguard plan . The creditor is therefore entitled to pursue the recovery of sums corresponding to the instalments of a loan due against a guarantor who is a legal person of the debtor, provided that the latter, having been required to pay the due portion of the guaranteed debt until it is extinguished, cannot claim that the dividends paid in execution of the plan have extinguished the debt to the extent of the amount due .

Cass. com., 10 March 2021, LawLex202200003928JBJ (S).

Cass. com., 27 May 2014, LawLex202200004469JBJ (S) ; CA Aix-en-Provence, 9 September 2021, LawLex202200004496JBJ (S) ; CA Caen, 12 May 2022, LawLex202200004574JBJ (S) ; CA Bordeaux, 16 May 2022, LawLex202200004467JBJ (S) ; CA Grenoble, 30 June 2022, LawLex202200004470JBJ (S).

Cass. com., 8 April 2021, LawLex202200004465JBJ (S).

CA Paris, 9 April 2002, LawLex202100005328JBJ (RJ).

Cass. com., 30 January 2019, LawLex202100001801JBJ (S).

Cass. com., 30 January 2019, cited above.

Bankruptcy Law

267. Quasi-general enforceability

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267. Quasi-general enforceability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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