Bankruptcy Law

Despite the opening of a receivership procedure, the debtor may exercise his personal rights alone, i.e. the rights and actions attached to his person, such as those relating to his family life. He or she may accept or renounce an inheritance , or initiate or defend a divorce procedure on his or her own, and relinquish his or her undivided share in a jointly-acquired property  as compensation. A d …

Rights attached to the person of the debtor

Despite the opening of a receivership procedure, the debtor may exercise his personal rights alone, i.e. the rights and actions attached to his person, such as those relating to his family life. He or she may accept or renounce an inheritance , or initiate or defend a divorce procedure on his or her own, and relinquish his or her undivided share in a jointly-acquired property  as compensation. A divorce decree recording such a waiver is fully enforceable against the insolvency procedure . On the other hand, the legal representative of the company owning a building which has constituted the marital home of a couple cannot, even if he has a legitimate interest, intervene in the divorce procedure, since the spouses alone are entitled to bring or defend such an action .

The debtor may also take action alone against decisions that are not related to the insolvency procedure. The debtor alone, and not the legal representative, may bring an action for damages arising from a traffic accident . He may lodge an appeal, without the assistance of the receiver, against a summary order ordering his eviction for one year from a property he once owned and which has been sold to a third party, provided that his request for a stay of execution does not concern the administration and disposal of his property . Furthermore, proceedings brought by an employee before the labor court against his employer, in connection with his employment contract, relate exclusively to his person, even if he is subsequently subject to an insolvency procedure, and cannot be brought by the legal representative . The same applies to an action for recognition of the existence of an employment contract against a former chairman of the board of directors to whom the company's insolvency procedure has been extended .

The rights attached to the various functions held by a natural person within the debtor company are also personal rights that he or she can exercise himself or herself. Thus, the judgment opening the insolvency procedure against an individual does not divest him of his duties as legal representative of a company, so that the legal representative is not entitled to request the appointment of a provisional receiver for the company . Likewise, the legal representative of a partner in a non-trading company is not entitled to take any personal action relating to his status as partner or manager, concerning the assets of the legal entity, or to take part in collective decisions .

Lastly, the tax authorities' formal notice to file an income tax return must be addressed to the taxpayer himself, and not to the legal representative appointed under the insolvency procedure, since the taxpayer remains under a personal obligation to declare his income .

Cass. com., 3 May 2006, LawLex202100001037JBJ (LJ).

Cass. com., 20 October 2021, LawLex202100005897JBJ (LJ).

Cons. d'Et., 28 July 2017, LawLex202100003137JBJ (LJ).

Cass. com., 16 January 2019, LawLex202100001044JBJ (LJ).

Cass. 1re civ., 4 June 2007, LawLex202100001039JBJ (LJ).

Cass. com., 17 April 2019, LawLex202100002174JBJ (LJ).

Cass. com. 22 February 1994, LawLex202100005048JBJ (RJ). See also Cass. com., 20 March 2019, LawLex202100001036JBJ (LJ) holding that proceedings for the liquidation of a provisional astreinte, aimed at obtaining the eviction of the debtor from a residential building over which he has a right of enjoyment attached to his person, constitutes an action in which he can defend himself alone and which escapes the rule of divestiture, even if the dispute also concerns a significant claim on the other owners of the building.

Cass. soc., 31 January 2012, LawLex202100001038JBJ (LJ).

Cass. soc., 13 July 2004, LawLex202100001034JBJ (LJ).

Cass. com., 27 November 2001, LawLex202100001033JBJ (LJ).

Cass. com., 18 October 2011, LawLex202100001045JBJ (LJ).

Bankruptcy Law

352. Rights attached to the person of the debtor

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352. Rights attached to the person of the debtor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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