Bankruptcy Law

In accordance with Article L. 622-25-1 of the Commercial Code, applicable to the receivership procedure on the basis of Article L. 631-14, the claim declaration interrupts the statute of limitations until the judgment closing the procedure. The annulment of the opening of a first insolvency procedure against the debtor does not deprive the declaration made in the context of this procedure of its i …

Interruption of the statute of limitations

In accordance with Article L. 622-25-1 of the Commercial Code, applicable to the receivership procedure on the basis of Article L. 631-14, the claim declaration interrupts the statute of limitations until the judgment closing the procedure. The annulment of the opening of a first insolvency procedure against the debtor does not deprive the declaration made in the context of this procedure of its interruptive effect, which continues until this decision .

The declaration of claim exempts its author from any formal notice and is equivalent to an act of prosecution , even in the absence of verification  or admission  of the claims in question, and without the need to distinguish between secured claims and unsecured claims . The interruptive effect applies both to the principal amount of the claim and to the interest, where it is specified in the declaration, with an indication of the method of calculation . It is not necessary for the declaration to have been notified to the person invoking the statute of limitations .

While the declaration of a claim against the debtor interrupts the statute of limitations with regard to the debtor's joint and several debtor  until the judgment closing the procedure, most of the litigation in this area concerns guarantors . Under Article L. 622-25-1, an action for payment brought against the debtor's guarantors many years after the declaration or admission of the claim , but before  or after  the judgment closing of the debtor's receivership, is admissible, provided that the declaration has interrupted the statute of limitations until the end of the proceedings. Thus, a bank's action against the debtor's guarantors, brought more than five years after the claim was declared, is not time-barred, provided it is brought before the judgment closing the operations of the sale plan .

To oppose the interruptive effect of the declaration, guarantors often argue that this rule would be contrary to Article 6 ECHR, since it would make it impossible for them to benefit from a statute of limitations, or would subject them to an excessive statute of limitations. The Court of Cassation systematically rejects this argument , since any interested party may bring to the attention of the president of the court facts that may justify the latter's ex officio referral for the purpose of closing an insolvency procedure .

Closure of the procedure triggers a new statute of limitations period of five years . Consequently, an action brought by a creditor who issues a summons for seizure and sale to his debtor more than five years after the closure of the procedure is inadmissible .

Lastly, subject to the provisions of Article L. 625-3 , ongoing proceedings are interrupted until the pursuing creditor has declared his claim. Failing this, the court hearing an application for the determination of a claim that has not been declared cannot declare the action inadmissible, but must simply note the interruption of proceedings and the impossibility of ruling .

Cass. com., 27 January 2015, LawLex202100002356JBJ (LJ).

Cass. com., 28 June 1994, LawLex202100005620JBJ (RJ).

Cass. com., 18 January 2017, LawLex202100002212JBJ (RJ).

Cass. com., 30 October 2012, LawLex202100005631JBJ (LJ).

Cass. com., 12 July 2017, LawLex202100002218JBJ (RJ).

Cass. com., 23 October 2019, LawLex202100001553JBJ (RJ).

Cass. com., 23 October 2019, LawLex202100001552JBJ (LJ).

Cass. com., 6 July 2010, LawLex202100005632JBJ ; 1 July 2020, LawLex202100005636JBJ (LJ).

Cass. com., 1 July 2020, LawLex202100005636JBJ (LJ).

Applicable by reference to art. L. 631-14.

Cass. com., 20 October 2021, LawLex202100005706JBJ (RJ).

Cass. com., 15 March 2005, LawLex202100001157JBJ (LJ).

Cass, com. 24 March 2021, LawLex202100006103JBJ (LJ), holding that an action for payment brought by a registered creditor, against whom the declaration of unseizability of the debtor's real estate is unenforceable, a few months after the closure of the debtor's insolvency procedure, is not time-barred due to the failure to admit the claim, since in such a case, the interruption of prescription resulting from the declaration of claim continues until the closure. See already Cass. com. 24 January 2006, LawLex202100002950JBJ (LJ).

Cass. com., 6 July 2010, LawLex202100005632JBJ (LJ).

Cass. com., 3 November 2010, LawLex202100005634JBJ (LJ).

Cass. com. 26 September 2006, LawLex202100002211JBJ (LJ), holding that a bank's action for payment against the debtor's guarantor prior to the closure of the procedure is not time-barred due to the absence of notification to the guarantor, since the declaration of claim interrupts the statute of limitations, without further formality, until the closure.

Cass. com., 30 June 2021, LawLex202200002178JBJ (LJ).

See in particular Cass. com., 24 September 2003, LawLex202100005633JBJ (RJ) ; 16 January 2019, LawLex202100001517JBJ (RJ).

Cass. com., 3 February 2009, LawLex202100005630JBJ (LJ).

Bankruptcy Law

431. Interruption of the statute of limitations

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431. Interruption of the statute of limitations

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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