Bankruptcy Law

The Court of Cassation considers that the burden of proof of the debtor's state of cessation of payments lies with the person who requests the opening of the insolvency procedure . The mere request for the opening of the insolvency procedure by the debtor does not exempt the court from the obligation to establish this state . Where the application is made by a creditor, it is not for the debtor to …

Application for the opening of an insolvency procedure

The Court of Cassation considers that the burden of proof of the debtor's state of cessation of payments lies with the person who requests the opening of the insolvency procedure . The mere request for the opening of the insolvency procedure by the debtor does not exempt the court from the obligation to establish this state . Where the application is made by a creditor, it is not for the debtor to prove that he is not in a state of cessation of payments . The same is true when the debtor's receivership is pronounced ex officio after a previous judgment has been overturned .

A creditor who applies for the opening of an insolvency procedure, on whom the burden of proof of the cessation of payments rests, does not provide this proof by the mere production of seizure writs and statements of insolvency, even though the debtor's activity is showing a positive result . In the absence of such proof by the creditor, the rejection of his application for the opening of a receivership procedure is justified . When, on the other hand, the creditor has provided evidence and the debtor contests his state of cessation of payments, the burden of proof is reversed. Thus, a debtor who claims that certain debts entered in the accounts are not payable must justify this .

Cass. com., 24 March 2009, LawLex202100004250JBJ (RJ) ; 27 April 1993, LawLex202100004229JBJ (RJ) ; 2 April 1996, LawLex202100004259JBJ (RJ) ; 22 January 2008, LawLex202100004260JBJ (RJ) ; 23 November 1999, LawLex202100002069JBJ (RJ) ; 10 May 2005, LawLex202100004199JBJ (RJ) ; 5 May 2015, LawLex202100004124JBJ (RJ) ; 30 June 2009, LawLex202100004253JBJ (LJ).

Cass. com., 6 March 2001, LawLex202100004189JBJ (RJ).

Cass. com., 19 November 2013, LawLex202100004248JBJ (LJ).

Cass. com., 28 January 2004, LawLex202100004225JBJ (RJ).

Cass. com., 23 January 2001, LawLex202100004262JBJ (RJ).

Cass. com., 16 June 2004, LawLex202100004263JBJ (RJ).

Cass. com., 12 July 2011, LawLex202100004117JBJ (LJ).

Bankruptcy Law

297. Application for the opening of an insolvency procedure

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297. Application for the opening of an insolvency procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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