Bankruptcy Law

Pursuant to Article L. 622-29 of the Commercial Code, which is applicable to the receivership procedure by virtue of Article L. 631-14, “[t]he opening judgment does not render due and payable any claims that have not fallen due by the date of its pronouncement. Any clause to the contrary is deemed unwritten”. The same sanction applies to a clause that provides for repayment of a loan to become due …

Paralysis of forfeiture of term clauses

Pursuant to Article L. 622-29 of the Commercial Code, which is applicable to the receivership procedure by virtue of Article L. 631-14, “[t]he opening judgment does not render due and payable any claims that have not fallen due by the date of its pronouncement. Any clause to the contrary is deemed unwritten”. The same sanction applies to a clause that provides for repayment of a loan to become due as soon as the borrowers cease to make payments .

The principle also applies to the guarantor , who may rely on it in the event of an action against him for payment of the debit balance existing on the date of the opening judgment, in the absence of closure of the current account, provided that his commitment cannot exceed what is owed by the debtor . To order the guarantor to pay the interest for which it is liable, the guarantor must have been put in default and the debtor's current account must have been closed, as the judgment opening the receivership does not render due and payable any debts that have not fallen due by the date of its pronouncement .

The forfeiture of the term of a loan contract, which is not incurred by the principal debtor, cannot be invoked against the guarantor, notwithstanding any clause to the contrary in the contract of suretyship . Thus, in view of the ancillary nature of the guarantee, the forfeiture of term clause in the contract must be deemed unwritten . Neither the commencement of receivership procedure nor the receiver's waiver of the right to perform a loan contract can result in the forfeiture of the term with respect to either the principal debtor or the guarantor , so that payments made by the principal debtor can only be set off against the capital due from the guarantor and not against an unmatured part of that capital .

In addition, a creditor who has registered a provisional judicial mortgage on the property of the principal debtor's guarantor, a natural person, is authorized, in order to prevent the security from lapsing, to summon the guarantor with a view to obtaining an enforcement order against him covering the totality of the sums due, even before his claim against the guarantor has fallen due in full .

Finally, the forfeiture of the term cannot be invoked against the legal representative .

Cass. com., 21 February 2012, LawLex202200002822JBJ (RJ).

Cass. com., 14 November 1989, LawLex202200002823JBJ (RJ) ; 2 May 1993, LawLex202200002824JBJ (RJ).

Cass. com., 3 January 1995, LawLex202200002825JBJ (RJ)

Cass. com., 16 April 1996, LawLex202200002826JBJ (RJ).

Cass. com., 20 June 1995, LawLex202200002827JBJ (RJ).

Cass. 1re civ., 24 January 1995, LawLex202200002828JBJ (RJ).

Cass. com., 3 March 1998, LawLex202200002829JBJ (RJ).

Cass. com., 19 January 2022, LawLex202200002863JBJ (RJ).

Cass. com., 8 December 2021, LawLex202200002864JBJ (RJ).

Cass. com., 8 March 2017, LawLex202200002865JBJ (RJ).

Bankruptcy Law

462. Paralysis of forfeiture of term clauses

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Les notions juridiques connexes

462. Paralysis of forfeiture of term clauses

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise