Bankruptcy Law

Under Article L. 622-24 of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14, “[from] the publication of the judgment, all creditors whose claims arose prior to the opening judgment, with the exception of employees, must send a declaration of their claims to the legal representative within the delays set by decree of the State Council”. The principle o …

Declaration of claims arising prior to the opening judgment

Under Article L. 622-24 of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14, “[from] the publication of the judgment, all creditors whose claims arose prior to the opening judgment, with the exception of employees, must send a declaration of their claims to the legal representative within the delays set by decree of the State Council”. The principle of domestic and international public policy, according to which, in the event of insolvency procedure, all creditors must declare their claims, cannot be held in jeopardy by a decision to recognize or enforce a foreign judgment in France, insofar as this does not confer on the said judgment more rights than a domestic decision .

The date on which a claim arises, which is a criterion for distinguishing between creditors who are required to declare and those who are exempt from this formality, is the day on which it arises, i.e. the day on which the characteristic service is provided, and not the day on which it becomes due and payable . Thus, the royalty provided for in a contract of successive performance constitutes a claim under the procedure for the service relating to the period subsequent to the opening judgment, and an earlier claim, subject to declaration as a liability, for that relating to the period preceding it, regardless of the date on which the royalty became due .

The triggering event differs according to the nature of the claim in question. In the case of a claim arising from a contract of sale or a gift, the date that determines whether it is a prior or subsequent claim is the date of signature of the deed. Consequently, claims arising from contracts of sale entered into before the debtor's opening judgment , as well as claims for arrears arising from a gift contract entered into before the opening of the procedure, must be declared as liabilities of the proceedings, even if they matured after the latter . Similarly, a repayment claim arising from the annulment of a deed of assignment of claims, for having been granted during the suspect period, must, insofar as it originated prior to the judgment opening the insolvency procedure, be declared as a liability of the insolvency procedure, failing which it will be extinguished .

In addition, the triggering event for a claim arising from a loan contract is the acceptance of the offer, so that a claim for repayment of a mortgage for which the offer was accepted prior to the opening of the insolvency procedure must be declared, even if the funds were remitted to the borrower after the proceedings had been opened . According to the Court of Cassation, the event giving rise to a claim for damages resulting from a criminal offense occurs on the day the damage is sustained . Similarly, a request by the lessee for administrative documents to be handed over after the opening of the seller's insolvency procedure, relating to an obligation to perform which may be resolved in damages in the event of non-performance, is subject to the procedure for declaring claims, provided that the event giving rise to the claim occurred prior to the opening of the insolvency procedure .

The claim arising from a loan contract granted to a non-trading partnership must be declared as a liability in the receivership procedure of its partners, even if it predates the procedure opened against the legal entity, since the partners are indefinitely liable to the creditor for its corporate liabilities in the event of the latter's prior futile pursuit .

Similarly, a creditor who demands the return of funds held on his behalf by the debtor can only do so by declaring his claim and not by revendication . In this respect, a creditor to whom sums or securities received in his name or on his behalf by the debtor have not been remitted has a claim for restitution, which may be declared as a liability of the debtor, without harm to the implementation of the financial guarantee . Lastly, insofar as it does not constitute a maintenance claim, a wife's claim against the joint ownership set up with her husband in insolvency procedure must be declared in the procedure .

On the other hand, the creditor of a company placed in receivership is not required to declare his claim to the procedure if payment was made prior to the opening judgment . Nor is the lessor required to declare his claim to the lessee's insolvency procedure when the lessee has deposited the sums due in respect of rent and occupancy indemnities definitively established by a court decision rendered prior to the opening judgment . In the absence of a creditor/debtor relationship, the beneficiary of a security interest granted to guarantee the debt of a third party may not declare his claim against the grantor, since he cannot sue the grantor for payment .

Cass. 1re civ., 29 September 2004, LawLex202100001171JBJ (LJ).

Cass. com. 19 December 2000, LawLex202100002807JBJ (LJ), upholding the obligation to declare a prior claim that was not immediately due.

Cass. com., 4 February 2003, LawLex202100002808JBJ (LJ).

Cass. com., 17 April 2019, LawLex202100002809JBJ (LJ) ; 18 January 2017, LawLex202200002082JBJ (LJ).

Cass. 1re civ., 23 May 2006, LawLex202100002821JBJ (LJ).

Cass. com., 14 June 1994, LawLex202100002805JBJ (RJ).

Cass. com., 12 July 2017, LawLex202100002961JBJ (LJ).

Cass. com., 17 June 2020, LawLex202100006117JBJ (RJ).

Cass. com., 28 May 2002, LawLex202100005241JBJ (RJ).

Cass. 3e civ., 23 May 2007, LawLex202100002801JBJ (RJ).

Cass. 1re civ., 27 March 2007, LawLex202100003300JBJ (LJ).

Cass. com., 21 March 2006, LawLex202100002395JBJ (LJ).

Cass. com., 11 February 2004, LawLex202100002800JBJ (LJ).

Cass. com., 27 November 2019, LawLex202200002312JBJ (LJ).

Cass. com., 10 January 2012, LawLex202100002541JBJ (LJ).

Cass. com., 30 June 2004, LawLex202100002634JBJ (RJ).

Bankruptcy Law

409. Declaration of claims arising prior to the opening judgment

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409. Declaration of claims arising prior to the opening judgment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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