Bankruptcy Law

Article L. 622-7, I of the Commercial Code  expressly excludes maintenance claims from the scope of the prohibition on payments. Maintenance claims include alimony or child support payments , contributions towards the costs of a marriage , compensatory allowance  and pensions owed to needy parents . However, wage claims cannot be assimilated to maintenance claims .
Prior to the Ordinance of 18 Dec …

Maintenance claims

Article L. 622-7, I of the Commercial Code  expressly excludes maintenance claims from the scope of the prohibition on payments. Maintenance claims include alimony or child support payments , contributions towards the costs of a marriage , compensatory allowance  and pensions owed to needy parents . However, wage claims cannot be assimilated to maintenance claims .

Prior to the Ordinance of 18 December 2008 , the text also excluded claims relating to the day-to-day needs of the individual debtor . However, the possibility of obtaining payment for such claims, where they arose prior to the opening judgment, did not sit well with the obligation to declare them and the prohibition on individual legal action in respect of them. In addition, these claims, even if they arose after the opening judgment, did not benefit from preferential treatment, since this was reserved for claims arising from the debtor's professional activity. The 2008 Ordinance resolved these difficulties: payment of prior claims relating to the debtor's day-to-day needs is now prohibited. On the other hand, payment of such claims is authorized where they arose after the opening judgment, in consideration of a service provided to the debtor, provided that the text no longer mentions the professional purpose of the consideration offered to the debtor. On the other hand, in the case of strictly “maintenance” claims, the court does not have to check whether a payment made after the opening judgment corresponds to the settlement of an earlier claim or a later claim not mentioned in I of Article L. 622-17 .

The claim arising from a compensatory allowance, which is partly of a maintenance nature, escapes the rule of the prohibition of payments and does not necessarily have to be declared as a liability of the debtor . Like alimony, it constitutes a personal debt owed by the debtor which, according to the Court of Cassation, must be paid out of income still available to him or her, or recovered through the direct payment or public recovery of alimony  procedure. It can only be paid out of funds available in the procedure if it is declared as a liability and accepted for distribution . Maintenance claims may also be paid by offsetting the amount against the price of the debtor's undivided rights, which the creditors' representative assigns to the other undivided co-owner, the maintenance creditor .

Maintenance claims, on the other hand, are subject to the principle of the prohibition of legal action , so that the creditor cannot bring an action for payment against the debtor to obtain payment , unless he or she uses the direct payment procedure or the public recovery procedure for maintenance payments.

Applicable to receivership on reference from art. L. 631-14 C. com.

Cass. com., 8 October 2003, LawLex202100002680JBJ (LJ).

Cass. com., 13 June 2019, LawLex202100002691JBJ (LJ).

Cass. com., 12 July 2016, LawLex202100002676JBJ (LJ).

C. com., art. L. 622-21, applicable by reference to art. L. 631-14.

Cass. com., 3 May 2016, LawLex202100002675JBJ (S).

Ordinance 2008-1345 of 18 December 2008 reforming the law governing distressed companies.

See for an application, Cass. com., 3 November 2010, LawLex202100005012JBJ (RJ).

Cass. com., 8 October 2003, LawLex202100002818JBJ (LJ).

Bankruptcy Law

386. Maintenance claims

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

386. Maintenance claims

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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