Bankruptcy Law

The Court of Cassation considers that in order to be “available” within the meaning of Article L. 631-1 of the Commercial Code, an asset must be mobilizable or realizable in the short term.
Present such a characteristic:
- cash reserves  or the cash advance granted to the debtor by a company of the same group, the repayment of which has not been requested ;
- a credit reserve  or an overdraft faci …

Assets available

The Court of Cassation considers that in order to be “available” within the meaning of Article L. 631-1 of the Commercial Code, an asset must be mobilizable or realizable in the short term.

- cash reserves  or the cash advance granted to the debtor by a company of the same group, the repayment of which has not been requested ;

- a credit reserve  or an overdraft facility ;

- the provision that exists for the benefit of the bearer of a bank cheque during the statute of limitations of his action for payment against the drawee, even if the cheque has not been cashed ;

On the other hand, the following do not constitute available assets, unless they can be realized or mobilized in the short term

- shareholdings in or claims on various subsidiaries ;

- cash advances made by the debtor's manager or parent company for the sole purpose of delaying the date of cessation of payments in an abnormal manner ;

- quotations, even for large amounts , or even a firm order ;

- trade receivables , from the Trésor , or intra-group receivables, if the debtor's subsidiaries are unable to pay them ; 

- funds placed in escrow with a notary for the benefit of mortgagees, pending the release of mortgages ; 

- a first demand guarantee given by a third party, nor his agreement to defer repayment in the event of its being called upon .

Finally, unpaid share capital is not an available asset, but a claim of the partnership against its partners .

Cass. com., 20 September 2005, LawLex202100004238JBJ (RJ).

Cass. com. 16 November 2010, LawLex202100005967JBJ (RJ). See also. Cass. com, 12 May 2009, LawLex202100004118JBJ (LJ), holding that a current account advance, which is not blocked or for which repayment has not been requested, constitutes an available asset and not an additional payable liability. Contra, CA Rennes, 22 February 2022, LawLex202200006454JBJ (LJ).

Cass. com., 18 March 2008, LawLex202100005913JBJ (LJ);16 December 2008, LawLex202100004214JBJ (RJ); CA Metz, 3 March 2022, LawLex202200006452JBJ (RJ).

Cass. com., 20 June 1995, LawLex202100004209JBJ (RJ).

Cass. com., 17 May 2011, LawLex202100005968JBJ (LJ) ; 1st July 2020, LawLex202100004156JBJ (RJ) and LawLex202200004285JBJ (RJ).

Cass. com., 18 June 2013, LawLex202100004220JBJ (LJ); CA Metz, 3 March 2022, cited above.

Cass. com., 26 March 2013, LawLex202100004221JBJ.

Cass. com., 2 November 2016, LawLex202100004433JBJ (RJ).

Cass. com, 7 February 2012, cited above; CA Bastia, 8 June 2022, LawLex202200006453JBJ (RJ), The amount of a debt to be recovered from the Trésor may not be included in the debtor’s available assets where there is no certainty as to the existence of a balance in his favor and the possibility of its collection under conditions compatible with the concept of available assets.

Cass. com., 24 March 2009, LawLex202100001854JBJ (RJ).

Cass. com., 5 December 2018, LawLex202100005965JBJ (RJ).

Cass. com., 26 June 1990, LawLex202100004247JBJ (RJ).

Cass. com., 8 January 2002, LawLex202100005963JBJ (LJ). Equal v. Cass. com., 29 November 2016, LawLex202100005970JBJ (LJ), considering that an amount paid by a partner, subject to the invalidation of the judgment opening the insolvency procedure, constitutes a credit reserve to be included in the debtor company’s available assets; 19 February 2013, LawLex202100004245JBJ (LJ)The Court held that the financial assistance granted by a bank to a company which had assigned claims to it by means of a Dailly note constitutes an available asset if it is based on the resources of the bank’s economic activity and the European Parliament, in its resolution on the European Social Fund and the Committee on Social Affairs, Employment and Social Affairs, has taken the view that the European Parliament should be consulted on this matter.

Cass. com., 23 April 2013, LawLex202100004208JBJ (RJ).

Cass. com., 7 January 2003, LawLex202100004241JBJ (LJ).

Cass. com., 18 December 2007, LawLex202100004194JBJ (RJ); 5 February 2013, LawLex202100004196JBJ (RJ). Equal see, for photocopying a bank cheque, Cass. com., 13 May 2014, LawLex202100004206JBJ (RJ). 

See a contrario, Cass. com., 20 March 2019, LawLex202100004193JBJ (LJ) ; 22 January 2002, LawLex202100004217JBJ (RJ).

Cass. com., 15 February 2011, LawLex202100004153JBJ (LJ).

Cass. com., 28 November 1989, LawLex202100004210JBJ (RJ); 7 February 2012, LawLex202100001906JBJ (LJ). The solution applies to its fullest extent, even if the lessee has made an offer to purchase the property for an estimated price, accepted by the landlord’s guardian, and reiterated his intention to acquire the property at the hearing (Cass. com., 17 June 2020, LawLex202100004216JBJ [LJ]) or if the debtor has accepted the tender offer issued by the beneficiary municipality at the price corresponding to the value retained by the expropriation court (Cass. com., 27 February 2007, LawLex202100004215JBJ [RJ]).

Cass. com., 22 January 2002, LawLex202100004217JBJ (RJ).

Bankruptcy Law

294. Assets available

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

294. Assets available

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise