Bankruptcy Law

If the debtor's payments are found to be suspended during the execution of the plan, a creditor, the commissioner for the execution of the plan or the public prosecutor may apply to the court that approved the plan for a decision, after the public Prosecutor has given its opinion, on the termination of the plan, in accordance with Article L. 626-27, I and II of the Commercial Code. If the applicat …

Assessment of available assets and current liabilities

If the debtor's payments are found to be suspended during the execution of the plan, a creditor, the commissioner for the execution of the plan or the public prosecutor may apply to the court that approved the plan for a decision, after the public Prosecutor has given its opinion, on the termination of the plan, in accordance with Article L. 626-27, I and II of the Commercial Code. If the application is made by a creditor, it is not up to the debtor to prove his ability to meet the liabilities due with his available assets for the purpose of repaying the balance of the claim .

The Court of Cassation adopts a strictly accounting approach to the characterization of the state of cessation of payments and requires that the creditor brings proof that the debtor can no longer face the due liabilities with his available assets. It considers that in the absence of available assets, the debtor who cannot meet the liabilities due in the amount of EUR 29,500 is in a state of suspension of payments despite the regularization of the unpaid installments .

On the other hand, no account is taken of the debtor's behavior, so that failure to comply with the plan or failure to pay a single registered claim does not in itself establish the cessation of payments by the debtor in the absence of even a summary analysis of the assets available on the date of the court's decision . Similarly, a delay in payment of a first instalment, the partial payment of the second instalment, the appearance of new debts after the adoption of the plan, an operating result and a result for the financial year in deficit, the hypothetical nature of the recovery of debts, do not constitute elements that can characterize the state of cessation of payments of the debtor on the day the court rules . The fact that the debtor has not fulfilled all of his obligations, that the instalments provided for in the plan have not been paid for years, that the liabilities relating to the business can only be discharged through its transfer, which is incompatible with the continuation of the business, and that the monthly payments relating to a real estate loan or the payment of the outstanding capital that has become due have not resumed at the end of the moratorium granted by the creditors, is not such as to characterize a cessation of payments .

Finally, the voluntary intervention of a creditor in a proceeding in which the debtor company is summoned to rescind its safeguard plan and to open a court-supervised liquidation procedure because of a cessation of payments during its execution, is inadmissible when the creditor does not justify the certainty, liquidity and exigibility of its claim .

Cass. com., 23 September 2020, LawLex202100006267JBJ (RJ).

Cass. com., 8 March 2017, LawLex202100005332JBJ (RJ).

Cass. com., 2 June 2021, LawLex202100006258JBJ (RJ).

Cass. com., 29 April 2014, LawLex202100005327JBJ (RJ).

Cass. com., 8 January 2020, LawLex202100005329JBJ (RJ).

Cass. com., 26 February 2020, LawLex202100005330JBJ (S).

Bankruptcy Law

273. Assessment of available assets and current liabilities

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273. Assessment of available assets and current liabilities

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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