Bankruptcy Law

In the course of his duties, the receiver may be held liable in tort under Article 1240 of the Civil Code, which stipulates that “[a]ny act of man whatsoever, which causes damage to another, obliges the person by whose fault it occurred to repair it”. The plaintiff must, however, demonstrate fault, damage and a causal link between the two. The scope of the receiver's liability must be modulated wi …

Tort and criminal liability

In the course of his duties, the receiver may be held liable in tort under Article 1240 of the Civil Code, which stipulates that “[a]ny act of man whatsoever, which causes damage to another, obliges the person by whose fault it occurred to repair it”. The plaintiff must, however, demonstrate fault, damage and a causal link between the two. The scope of the receiver's liability must be modulated with regard to the extent of his mission.

In the event of unpaid debts, the insolvency representative is personally liable if he or she fails to ensure that the debtor is in a position to pay for the acts for which he or she has provided assistance . This is the case, in particular, if he has allowed the debtor to enter into commitments out of proportion with his financial faculties, and has not opposed the continuation of relations with his creditor, even though the proposed plan did not make it possible to pay claims arising after the opening judgment .

Moreover, the extent to which he is liable also depends on the form of his decision. Whereas the countersignature of two order confirmation letters , or the affixing of his visa to them , are likely to engage his liability for fault in the event of unpaid invoices, the mere sending of circular letters to the debtor's suppliers, assuring them of payment of invoices within a period of eight and then thirty days, cannot be considered as a contractual guarantee by the receiver of payment of debts . A fortiori, the receiver is not liable for unpaid invoices if he has not signed off on the orders placed .

The manager's fault must be assessed at the date when the debt arises . In fact, a receiver who approves orders for goods without checking that the debtor company's cash position will enable it to pay for the goods on the due date is not at fault if, at the date the orders were signed, there was an offer to take over the business, with a commitment to pay receivables subsequent to the opening judgment .

Lastly, under Article L. 654-12 of the Commercial Code, a receiver may be held criminally liable if he or she uses the powers at his or her disposal in a manner contrary to the interests of the creditors or the debtor .

See in particular Cass. com, 14 May 2008, LawLex202100002249JBJ (RJ) holding that a receiver is personally liable if he fails to ensure that orders for services placed with a chartered accountant can be paid in full; 5 October 1993, LawLex202100005055JBJ (RJ) holding that the receiver is personally liable if he countersigns two letters confirming orders for supplies for the debtor without having personally ensured that the co-contractor will be able to be paid in view of the company's financial situation.

Cass. com., 11 June 1996, LawLex202100005054JBJ (RJ).

Cass. com., 13 November 2002, LawLex202100002250JBJ (RJ).

Cass. com., 16 June 2004, LawLex202100002252JBJ (RJ).

Cass. com., 3 October 2006, LawLex202100005166JBJ (RJ).

Cass. com., 15 October 2002, LawLex202100005245JBJ (RJ).

Cass. com., 4 February 2003, LawLex202100002251JBJ (RJ).

See infra, Part 5, title 4, chapter 2, section 3.

Bankruptcy Law

362. Tort and criminal liability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

362. Tort and criminal liability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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