Bankruptcy Law

The legal representative  appointed by the court has sole authority to act on behalf of and in the common interest of the creditors, in accordance with Article L. 622-20(1) of the Commercial Code, applicable to the receivership procedure by reference from Article L. 631-14. He acts as the defender of the common interest and not that of the parties to the contract, thus the clause conferring jurisd …

Monopoly of the legal representative or the commissionner for the enforcement of the plan

The legal representative  appointed by the court has sole authority to act on behalf of and in the common interest of the creditors, in accordance with Article L. 622-20(1) of the Commercial Code, applicable to the receivership procedure by reference from Article L. 631-14. He acts as the defender of the common interest and not that of the parties to the contract, thus the clause conferring jurisdiction provided for in a contract concluded between the debtor and a third party co-contractor prior to the opening of the insolvency procedure cannot be enforced against it .

The monopoly of action conferred by Article L. 622-20 precludes a shareholder or, more generally, a creditor from bringing an action against a bank for increased liabilities of the debtor . Similarly, a debtor is not entitled to bring an action against his bank for wrongful maintenance and then abrupt termination of credit facilities, or for restitution of a sum wrongly taken from his current account, provided that these faults are detrimental only to the creditors, whose interests can be defended only by the legal representative , and that the debtor does not prove that he has suffered a loss distinct from those creditors . Only the legal representative has standing to bring an action for damages for the common loss resulting from the loss of the company's capital . On the other hand, he does not have standing to bring the action available to each of the creditors against the partners of a non-trading company, since they remain personally liable to the company's creditors, even in the event of an insolvency procedure .

The Court of Cassation held that the legal representative did not have to specifically designate the creditors he represented, since he could only legally act in the interests of all creditors .  Consequently, he could not act in the personal interest of a creditor or a group of creditors such as, in the case of management leases, creditors with a claim necessary for the operation of the business , as referred to in Article L. 144-6 of the Commercial Code. Similarly, he could not act against the wife of a deceased businessman solely in the interests of creditors holding a claim in respect of the continued operation of the business received as part of the partition . For the same reason, he also had no standing to act to prevent the declaration of unseizability from being set aside in the interests of creditors whose rights arose, subsequent to its publication, in connection with the declarant's professional activity , or to realise an immovable that had been the subject of a declaration of unseizability  or to proceed with the auction and partition of the immovable . However, the Court of Cassation has reversed its case law and now considers that the creditors' representative may challenge the legality of the debtor's declaration of unseizability . Since it has defined the common interest as the protection and reconstitution of the creditors' common pledge , the Court of Cassation had to accept, for the sake of consistency, that the creditors' representative may take action to challenge the legality of the declaration, such action being aimed precisely at protecting and reconstituting the creditors' common pledge. Logically, this solution should extend to all actions aimed at reconstituting the common pledge, even if they appear to benefit only one category of creditors.

Under Article L. 626-25 of the Commercial Code, which applies to the receivership procedure on the basis of Article L. 631-19, the court may appoint the receiver or the legal representative as the commissioner for the enforcement of the plan. In his new role, the commissioner is also authorized to take action in the common interest of the creditors. The commissionner for the enforcement of the plan is entitled to take action, in the common interest of creditors, for damages resulting from the reduction in the debtor's assets or the worsening of its liabilities, even if the loss of turnover complained of occurred in part after the receivership was initiated . Once the commissioner has been appointed, he alone is also entitled to bring an action for compensation for the collective loss resulting from the freezing of the claims of all the creditors, which is inherent to the insolvency procedure .

Formerly “creditors' representative”.

Cass. com., 9 June 2022, LawLex202200006666JBJ (LJ).

Cass. com., 13 March 2012, LawLex202200001799JBJ (LJ).

Cass. com., 18 June 2013, LawLex202100001439JBJ (LJ).

Cass. com., 30 June 2015, LawLex202100002965JBJ (LJ).

Cass. com., 15 November 2016, LawLex202100001446JBJ (LJ) ; 15 November 2017, LawLex202200001919JBJ (LJ).

Cass. com., 2 June 2015, LawLex202100001543JBJ (RJ).

Cass. com., 26 January 2010, LawLex202100002934JBJ (RJ).

Cass. com., 21 June 2005, LawLex202100005607JBJ (RJ).

Cass. com., 3 June 1997, LawLex202100005441JBJ (LJ).

Cass. com., 5 January 1999, LawLex202100005444JBJ (RJ).

Cass. com., 27 May 2003, LawLex202100005604JBJ (RJ).

Cass. com., 23 November 2004, LawLex202100005614JBJ (LJ).

Cass. com., 24 January 2006, LawLex202100002950JBJ (LJ).

Cass. com., 16 March 1993, LawLex202100002962JBJ (LJ).

Cass. com., 9 November 2004, LawLex202100005446JBJ (LJ) ; 13 December 2005, LawLex202100005564JBJ (LJ).

Cass. com., 17 September 2013, LawLex202100004185JBJ (LJ).

Bankruptcy Law

464. Monopoly of the legal representative or the commissionner for the enforcement of the plan

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464. Monopoly of the legal representative or the commissionner for the enforcement of the plan

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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