Bankruptcy Law

The individual or common interests of creditors may be defended in a liability action based on Article 1240 of the Civil Code or Article L. 650-1 of the Commercial Code. A revocatory action, as defined by Article 1341-2 of the Civil Code, may also be brought.
1) Liability action against third parties
Under the terms of Article 1240 of the Civil Code, “[a]ny act of man whatsoever, which causes dama …

Actions against third parties

The individual or common interests of creditors may be defended in a liability action based on Article 1240 of the Civil Code or Article L. 650-1 of the Commercial Code. A revocatory action, as defined by Article 1341-2 of the Civil Code, may also be brought.

1) Liability action against third parties

Under the terms of Article 1240 of the Civil Code, “[a]ny act of man whatsoever, which causes damage to another, obliges the person by whose fault it occurred to make reparation for it”. The legal representative or the commissionner for the enforcement of the plan and, subsidiarily, the controllers, may take action against third parties in order to protect and reconstitute the common pledge of creditors. In fact, since the legal representative, who represents the common interest, brings an action for damages for the loss resulting from the increase in the debtor's liabilities caused by the fault of a third party, no creditor is entitled to bring an individual action against the third party for damages for the loss resulting from the suspension of his claim, which is inherent in the insolvency procedure .

The legal representative may also take action against creditors, on the basis of Article L. 650-1 of the Commercial Code, in respect of financial assistance granted in the event of fraud or gross interference in the management of the debtor, or if the guarantees given in return for such assistance are disproportionate .

Under Article 1341-2 of the Civil Code, a creditor may bring a revocatory action in his own name to have acts performed by his debtor in fraud of his rights declared unenforceable, on condition that he establishes, in the case of an act for consideration, that the third party contracting with him was aware of the fraud.

The exclusive right that Article L. 622-20 of the Commercial Code, applicable to the receivership procedure by reference from Article L. 631-14, confers on the legal representative to act in the name and in the interest of the creditors, does not prevent a creditor from bringing a revocatory action against all acts performed in fraud of its rights by the debtor . Moreover, a revocatory action may also be brought in the name and in the interest of the creditors by the legal representative and the commissionner for the enforcement of the plan . The latter may exercise the revocatory action without having to demonstrate that several creditors would be eligible to bring such an action . On the other hand, the legal representative cannot claim to exercise the revocatory action in place of creditors who have withdrawn their action for annulment of a gift made by the debtor to his daughter .

Cass. ass. plén., 9 July 1993, LawLex202100002940JBJ (LJ).

See for an application, Cass. com., 18 January 2017, LawLex202100002955JBJ (RJ).

Cass. com., 8 October 1996, LawLex202100001617JBJ (LJ).

Cass. com., 13 November 2001, LawLex202100001740JBJ (RJ) ; 23 April 2013, LawLex202200002868JBJ (LJ).

Cass. 1re civ., 29 May 2013, LawLex202100001611JBJ (RJ).

Cass. com., 30 November 1993, LawLex202200001833JBJ (RJ).

Bankruptcy Law

466. Actions against third parties

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466. Actions against third parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise