Bankruptcy Law

In the interests of consistency between decisions in the insolvency procedure, case law holds that where a decision to admit a claim has the force of res judicata, an action for nullity is inadmissible against the act on which it is based . The authority of res judicata attached to a decision admitting a preferential claim, due to the registration of a judicial mortgage, is therefore an obstacle t …

Inadmissibility of nullity action

In the interests of consistency between decisions in the insolvency procedure, case law holds that where a decision to admit a claim has the force of res judicata, an action for nullity is inadmissible against the act on which it is based . The authority of res judicata attached to a decision admitting a preferential claim, due to the registration of a judicial mortgage, is therefore an obstacle to an action for annulment of this registration, even if the date of cessation of payments is postponed .

However, the Court of Cassation has specified that a decision to admit claims must, in order to have the force of res judicata as regards the validity of payments made during the suspect period, rule on this issue in its operative part . Consequently, transfers, cheques and bills of exchange made to a bank during the suspect period, with a view to reducing the debtor's balance on a date on which the bank was aware that the debtor's payments had ceased, are null and void even where the debtor's balance has been the subject of a decision admitting it to the debtor's liabilities, as that decision did not have the effect of deeming the payments to be in order .

See in particular Cass. com., 5 April 2011, LawLex202100002020JBJ (RJ) ; 13 October 1998, LawLex202100003446JBJ (LJ) ; 14 October 1997, LawLex202100001504JBJ (LJ).

Cass. com., 19 December 2018, LawLex202100002021JBJ (LJ).

Cass. com., 8 June 1999, LawLex202100003447JBJ (RJ) ; 17 July 2001, LawLex202100001996JBJ (LJ).

Cass. com., 24 October 1995, LawLex202100002023JBJ (RJ).

Bankruptcy Law

493. Inadmissibility of nullity action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

493. Inadmissibility of nullity action

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise