Bankruptcy Law

The debtor's freedom of action, when assisted by a receiver, is not limited to acts of day-to-day management. Article L. 622-7, II of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14, provides that “[t]he bankruptcy judge may authorize the debtor to carry out a disposition unrelated to the day-to-day management of the business”. When a receiver has be …

Disposals subject to authorization by the bankruptcy judge

The debtor's freedom of action, when assisted by a receiver, is not limited to acts of day-to-day management. Article L. 622-7, II of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14, provides that “[t]he bankruptcy judge may authorize the debtor to carry out a disposition unrelated to the day-to-day management of the business”. When a receiver has been appointed to assist the debtor with all or some of the acts relating to management, they exercise this prerogative concurrently. On the other hand, the receiver alone performs acts of disposal that are not part of day-to-day management when he or she has an administrative mission .

The debtor's obligation to obtain the authorization of the bankruptcy judge applies whether or not the assets he intends to dispose of are attached to the operation of his business .  The distribution of dividends to the shareholders of the debtor company , the exercise of the tenant's right of substitution for the purchaser , or the termination of the lease on premises used for the operation of the debtor's business  all constitute acts of disposal outside the scope of day-to-day management. The same applies to the allocation of funds for the acquisition of real estate , the conclusion of a promise to sell , the sale of real estate belonging to the debtor's personal assets , or the assignment of rights under a leasing contract . On the other hand, the conclusion of an employment contract does not constitute an act of disposal requiring the prior authorization of the bankruptcy judge .

Article L. 622-7, II specifies that if the requested act is likely to have a decisive impact on the outcome of the procedure, the bankruptcy judge may only give a ruling after obtaining the opinion of the public prosecutor. The ordinance adopted in breach of this essential formality is liable to be annulled on the grounds of ultra vires . In addition, once the bankruptcy judge has given a ruling on the requests submitted to him, he may not issue his authorization by simple letter, unless he is disregarding his powers .

Cass. com., 9 June 1992, LawLex202100002262JBJ (RJ).

CA Toulouse, 9 May 2018, LawLex202200000704JBJ.

Cass. 1re civ., 27 January 2004, LawLex202100005068JBJ (RJ).

CA Versailles, 18 June 2018, LawLex202200000713JBJ (S).

Cass. com., 8 September 2021, LawLex202200000503JBJ (RJ).

Cass. 1re civ., 27 January 2004, cited above.

Cass. 3e civ., 29 September 2016, LawLex202100002271JBJ (RJ).

CA Versailles, 15 January 1998, LawLex202200000192JBJ (RJ).

Cass. com., 4 November 2014, LawLex202100005069JBJ (RJ).

Cass. soc., 17 October 2006, LawLex202100002257JBJ (RJ).

Bankruptcy Law

354. Disposals subject to authorization by the bankruptcy judge

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354. Disposals subject to authorization by the bankruptcy judge

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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