Bankruptcy Law

The court must assess the state of cessation of payments on the day it rules. Consequently, in order to annul a transfer on the grounds of fraud, it cannot base its decision on the fact that the company whose shares have been transferred was unable to meet its current liabilities with its available assets a few weeks earlier, since there are chances, however slim, that its situation has improved i …

Date of judgment or ruling

The court must assess the state of cessation of payments on the day it rules. Consequently, in order to annul a transfer on the grounds of fraud, it cannot base its decision on the fact that the company whose shares have been transferred was unable to meet its current liabilities with its available assets a few weeks earlier, since there are chances, however slim, that its situation has improved in the meantime .

In the same way, the court of appeal hearing an appeal against the opening judgment must assess the debtor's ability to meet its current liabilities with its available assets at the date of its own decision, and not at the date of the court's decision . The court of appeal, which must not be satisfied with a reference to the grounds of the opening judgment , cannot, in the absence of any justification of the debtor's current situation, declare him to be in a state of cessation of payments “at least on the date of the opening of the insolvency procedure” . In addition, the court cannot confirm a decision to open a receivership procedure if, on the day of the decision, it finds that the debtor has not suspended cash services and has settled all his debts, except those he is contesting . It must also ascertain whether, on the day of the ruling, the debtor actually has a credit reserve which he claims should enable him to meet his current liabilities .

On the other hand, when the criticism of a plea relates exclusively to the provision which sets the date of cessation of payments, and not to the actual opening of the procedure, the court of appeal is not required to characterize the state of cessation of payments on the date on which it rules, but on the date it selects .

Cass. com., 5 May 2009, LawLex202100004266JBJ (RJ).

Cass. com., 23 November 2004, LawLex202100004268JBJ (RJ) ; 8 April 2015, LawLex202100004372JBJ (RJ) ; 7 November 1989, LawLex202100002076JBJ (RJ) ; 19 November 2003, LawLex202100004271JBJ (RJ).

Cass. com., 14 January 2004, LawLex202100004267JBJ (RJ).

Cass. com., 30 May 2006, LawLex202100004269JBJ (LJ).

Cass. com., 6 October 1992, LawLex202100002082JBJ (RJ).

Cass. com., 14 November 2000, LawLex202100002081JBJ (RJ).

Cass. com., 22 February 2017, LawLex202100004313JBJ (LJ).

Bankruptcy Law

329. Date of judgment or ruling

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

329. Date of judgment or ruling

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise