Bankruptcy Law

The Law of 26 July 2005  opened the benefit of insolvency proceedings to persons who exercise an independent professional activity or a liberal profession. Article L. 631-2 of the Commercial Code now covers all entrepreneurs who carry on an activity other than commercial, craft or agricultural, such as lawyers , doctors, architects, self-employed entrepreneurs , massage therapists , nurses...
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Exercise of an independent and liberal professional activity

The Law of 26 July 2005  opened the benefit of insolvency proceedings to persons who exercise an independent professional activity or a liberal profession. Article L. 631-2 of the Commercial Code now covers all entrepreneurs who carry on an activity other than commercial, craft or agricultural, such as lawyers , doctors, architects, self-employed entrepreneurs , massage therapists , nurses...

The law is not concerned with the status of an independent professional but with the characterization of the exercise of an independent professional activity : the registration of the natural person in the register of commercial agents  or the non-registration in the roll of a professional order  does not prevent the submission of a natural person who exercises an independent professional activity or a liberal profession to the regime of insolvency proceedings. Similarly, the mere registration of a natural person in the register of companies and their establishments does not make it possible to deduce that he or she is actually engaged in an independent professional activity .

Since 1 January 2006 , the date of entry into force of the Act of 26 July 2005, insolvency proceedings may be initiated against a natural person who exercises an independent professional activity or a liberal profession, provided that he or she continues to exercise his or her profession , and that he or she is in a state of cessation of payments on the date on which the court makes the decision, even though his or her liabilities were due before 1 January 2006 . Moreover, when the natural person no longer exercises an independent professional activity, he can nevertheless benefit from the regime of insolvency proceedings, if the debts in dispute arose during the professional exploitation exercised in his own name . On the other hand, persons who are self-employed or self-employed professionals on the day the court makes his decision cannot be the subject of overindebtedness procedure , regardless of the origin of the debts claimed , including those incurred prior to the self-employed or self-employed activity .

Finally, since independence is a necessary condition for the benefit of insolvency proceedings, managers  and partners  are excluded. Nevertheless, insolvency procedure may be initiated against a person who carries on an independent professional activity or a liberal profession, even if he has formed a company to carry on that activity, provided that he has never been registered with the RCS and that he cannot therefore be considered to have ceased to carry on that activity as an individual .

Law No 2005-845 of 26 July 2005 on the safeguard of companies, JO 27 July 2005.

See in particular Cass. com., 17 June 2020, LawLex202100003620JBJ (RJ).

See in particular Cass. com., 27 May 2008, LawLex202100003655JBJ (LJ).

CA Douai, 23 March 2017, LawLex202100006041JBJ (RJ). See also, Cass. 2e civ. 1 December 2016, LawLex202100003650JBJ (RJ), holding that a self-employed entrepreneur who has ceased his or her activity falls under Book VI of the Commercial Code only if all or part of his or her liabilities stem from that activity.

Cass. com., 30 September 2008, LawLex202100005839JBJ (RJ) holding that a masseur-kinesitherapist exercises a liberal profession and cannot, as such, be subject to a procedure of overindebtedness of individuals.

Cass. 2e civ., 18 February 2016, LawLex202100005707JBJ (RJ) considering that a self-employed business consultant who carries out an independent professional activity falls under the insolvency proceedings and not under the procedure for overindebtedness of individuals, regardless of the origin of the debts invoked. See in particular Cass. com, 17 June 2020, LawLex202100003620JBJ (RJ) opening the benefit of an insolvency procedure to a lawyer on the basis of a claim unrelated to his professional activity.

CA Rouen, 21 October 2016, LawLex202100005822JBJ (LJ).

Cass. com., 15 November 2016, LawLex202100005711JBJ (RJ).

See in particular Cass. 2nd civ., 1 June 2017, LawLex202100006062JBJ (RJ) holding that an orthodontist who does not practice in his own name but as a partner of a professional civil partnership does not fall under the scope of insolvency proceedings; Cass. com., 9 February 2010, LawLex202100006211JBJ (LJ) excluding from the benefit of insolvency proceedings a lawyer who exercises his activity as a partner of a liberal practice company; Cass. com, 16 September 2014, LawLex202100001850JBJ (RJ) considering that a dental surgeon, who has ceased to exercise his activity as an individual to become the sole partner of a liberal practice company, no longer acts in his own name but in that of the company and can no longer be summoned for receivership at the end of the one-year period.

Cass. com., 17 June 2020, LawLex202100003620JBJ (RJ).

See in particular CA Limoges, 7 July 2021, LawLex202100005830JBJ (RJ).

See in particular Cass. com., 30 September 2008, LawLex202100005839JBJ (RJ).

CA Aix-en-Provence, 23 February 2017, LawLex202100006063JBJ (RJ) holding that the mere designation of a person as an “industrialist” in a compromise of sale is not sufficient to bring him under the regime of insolvency proceedings in the absence of characterization of an independent professional or personal commercial activity.

Cass. 2e civ., 23 June 2016, LawLex201600001271JBJ (RJ).

CA Grenoble, 28 March 2013, LawLex202100006042JBJ (RJ).

Cass. com., 3 April 2019, LawLex202100003657JBJ (RJ).

Law of 26 July 2005, art. 190: “This law comes into force on 1 January 2006”.

CA Limoges, 7 July 2021, LawLex202100005830JBJ (RJ), considering that only practicing auto-entrepreneurs can be subject to an insolvency procedure.

Bankruptcy Law

289. Exercise of an independent and liberal professional activity

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289. Exercise of an independent and liberal professional activity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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