Bankruptcy Law

Article R. 661-1 of the Commercial Code stipulates that judgments and ordinances in matters of receivership procedure are enforceable ipso jure on a provisional basis. However, in certain circumstances, provisional enforcement may be ordered to be discontinued.
1) Principle
Pursuant to Article R. 661-1, the judgment opening the insolvency procedure takes effect from the first hour of the day on wh …

Principle and exception

Article R. 661-1 of the Commercial Code stipulates that judgments and ordinances in matters of receivership procedure are enforceable ipso jure on a provisional basis. However, in certain circumstances, provisional enforcement may be ordered to be discontinued.

Pursuant to Article R. 661-1, the judgment opening the insolvency procedure takes effect from the first hour of the day on which it is pronounced. Registrations regularized on the same day are therefore prohibited . Similarly, any dismissals must be authorized by the bankruptcy judge . On the other hand, provisional enforcement of the opening judgment does not, in principle, divest the debtor of the administration and disposal of its assets , so that acts performed by the debtor from the opening of the procedure are not necessarily suspect. Lastly, in the same way as the judgment opening the main procedure, the judgment extending the insolvency procedure is enforceable ipso jure. Consequently, the legal representative cannot be held liable for acts carried out in execution of his or her mandate, even if the judgment has subsequently been set aside .

The first president of the court of appeal, ruling in summary proceedings, may exceptionally halt provisional enforcement of the opening judgment when the arguments presented in support of the appeal against the opening decision appear serious . The request must necessarily be grafted onto an appeal on the merits. On the other hand, the court may reject an application to stop provisional enforcement of a judgment opening an insolvency procedure when, in the exercise of his sovereign discretion, it considers that the grounds put forward are not serious . It may give reasons for its decision to reject the petition, simply on the grounds that the chances of reversal or annulment of the decision do not appear to be serious, without having to explain further . On the other hand, the provisional enforcement of an opening judgment must be halted when the court has relied on a modest claim of less than EUR 3,000 to characterize the debtor's state of cessation of payments . In addition, the appeal must be lodged against the opening judgment and not against the judgment rejecting the third-party objection lodged against it .

Withdrawal of the opening judgment retroactively puts an end to the stay of interest running from the date of its pronouncement . On the other hand, a claim admitted after the opening judgment cannot be called into question by the subsequent annulment of the judgment of the court of appeal confirming this judgment .

Cass. com., 2 October 2007, LawLex202100004466JBJ (LJ).

Cass. soc., 12 May 1998, LawLex202100004444JBJ (RJ).

Cass. com., 30 October 2012, LawLex202100004501JBJ (LJ).

Cass. com., 7 March 2006, LawLex202100004443JBJ (RJ).

Cass. com., 30 October 2012, LawLex202100004463JBJ (LJ).

Cass. com., 17 July 2001, LawLex202100004472JBJ (LJ).

Cass. com., 4 June 2013, LawLex202100004473JBJ (RJ).

CA Paris, 6 December 2018, LawLex202100004512JBJ (LJ).

Cass. com., 7 June 2005, LawLex202100004471JBJ (LJ).

Cass. com., 17 October 2018, LawLex202100002210JBJ (S).

Bankruptcy Law

344. Principle and exception

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Les notions juridiques connexes

344. Principle and exception

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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