Bankruptcy Law

The optional nullity of payment of overdue debts, acts concluded for consideration, third-party notices, seizures and oppositions is subject to the knowledge of the debtor's state of cessation of payments by those who have dealt with him . This condition is not required in order to declare the absolute nullities of Article L. 632-1, I of the Commercial Code , or to declare the optional nullity of  …

Knowledge of the cessation of payments by the third party

The optional nullity of payment of overdue debts, acts concluded for consideration, third-party notices, seizures and oppositions is subject to the knowledge of the debtor's state of cessation of payments by those who have dealt with him . This condition is not required in order to declare the absolute nullities of Article L. 632-1, I of the Commercial Code , or to declare the optional nullity of gifts and declarations of unseizability.

The third party's knowledge of the debtor's cessation of payments is assessed at the date of payment and not at the time of the event giving rise to the payment . An assignment of claims should not be annulled where it is not established that the assignee bank was aware of the debtor's situation at the time of the assignment . Seizure made by a creditor after the date of cessation of payments may not be challenged where it is not established that the creditor had personal knowledge of the seriousness of the debtor's situation  at the date of service . Proof provided by the debtor and its receiver that the seizing creditor was merely aware of the risk of cessation of payments is insufficient .

The Court of Cassation considers that neither the capacity of manager of the third party beneficiary, a legal entity , nor that of principal of a judicial commissioner who initiates enforcement measures , implies knowledge of the debtor's cessation of payments. Nor does knowledge of the cessation of payments on the part of the manager presuppose knowledge of this state on the part of the legal entity that he directs . Similarly, a lessor who is the beneficiary of a transfer of equipment and vehicles cannot be presumed to have been aware of the debtor's cessation of payments simply because it shares the same headquarters and the same customer base as the debtor's bank .

The fact that a natural person is both the manager of the debtor company and the creditor has often allowed the court to presume that he was aware that the company was in a state of cessation of payments. Bank transfers and cheques drawn during the suspect period have been cancelled when the manager, who was the beneficiary, was aware that the company was in cessation of payments . Transfers made by the debtor to a creditor during the suspect period were also cancelled in the presence of common managers . The repayment of part of the current account of the managing partner, who actually performed financial management functions, made during the suspect period, was likewise declared null and void, since he had personal knowledge of his company's state of cessation of payments at the time of the payment . Conversely, the payment was not null and void where it was made to an absent co-managing partner who had not been informed that cheques had been rejected and social security contributions had not been paid because of conflicts with the other co-managing partner .

The courts have full discretion to assess whether the third party is aware that the debtor has suspended payments . Several factors may establish such knowledge, including the fact that : the payment was received after the creditor instituted an insolvency procedure against the debtor, which implies knowledge of the debtor's cessation of payments ; that, after having unsuccessfully claimed payment of his claims, the creditor gave up pursuing an action for payment that he knew was doomed to failure and preferred to buy the debtor's business by offsetting the amount of his claim ; issue third-party notices after having been informed by the ad hoc receiver that any enforcement action would result in immediate bankruptcy procedure, and by the debtor that he would not be able to settle his debts unless a new payment schedule was drawn up ; a seizure was enforced after having been confronted with a series of payment incidents on the part of the debtor, the debtor was unable to respond to a formal notice and the opening of a conciliation procedure which ended in failure ; to levy garnishments and oppositions with knowledge of the debtor's recurring cash flow difficulties, in particular his inability to pay both his past debts, which URSSAF had agreed to reschedule, and his current contributions ; a third-party notice had been issued after the failure to pay an initial instalment provided for in a schedule .

See in particular Cass. com., 4 January 2000, LawLex202200006905JBJ (LJ).

Cass. com., 16 June 2009, LawLex202200006816JBJ (LJ).

CA Versailles, 19 September 2013, LawLex202200006771JBJ (LJ) ; Cass. com., 9 January 1996, LawLex202200006920JBJ (RJ).

Cass. com., 16 February 1993, LawLex202200006922JBJ (RJ).

Cass. com., 20 Avril 2017, LawLex202100003728JBJ (LJ).

Cass. com., 19 November 2013, cited above.

Cass. com., 27 October 1998, LawLex202100004246JBJ (LJ).

CA Paris, 23 June 2016, LawLex202200006811JBJ (LJ).

Cass. com., 30 October 2000, LawLex202200006924JBJ (LJ).

CA Toulouse, 10 May 2007, LawLex202100003597JBJ (RJ).

Cass. com., 17 July 2001, LawLex202100001996JBJ (LJ).

CA Aix-en-Provence, 6 November 2015, LawLex202200006814JBJ (RJ) ; CA Caen, 20 December 2018, LawLex202200006807JBJ (LJ).

CA Fort-de-France, 19 March 2010, LawLex202200006776JBJ (RJ). Comp. Cass. com, 5 May 2015, LawLex202200006775JBJ (RJ), holding that failure to comply with a schedule agreed between a debtor and its creditor is not sufficient to characterize the creditor's knowledge that the debtor was unable to meet its current liabilities with its available assets.

Cass. com., 6 June 2001, LawLex202100003672JBJ (RJ).

CA Bordeaux, 10 September 2013, LawLex202200006806JBJ (RJ); CA Versailles, 19 November 2015, LawLex202200006815JBJ (LJ), holding that seizures and allocations of rent made during the suspect period by a syndicate of co-owners from the tenants of a debtor SCI, cannot be annulled, where proof of knowledge of liabilities exceeding assets by the latter or through a bailiff, is not reported.

CA Angers, 25 January 2022, LawLex202200002250JBJ (RJ).

CA Versailles, 18 July 2013, LawLex202200006813JBJ (RJ).

Cass. com., 19 November 2013, LawLex202100001997JBJ (LJ).

Cass. com. 2 December 2014, LawLex202100003727JBJ (RJ), holding that the knowledge of the state of cessation of payments of a debtor, by the bailiff who initiates enforcement measures during the suspect period, does not imply that of his principal, since he is bound by professional secrecy.

Cass. com., 23 May 2000, LawLex202200006244JBJ (RJ).

Bankruptcy Law

486. Knowledge of the cessation of payments by the third party

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486. Knowledge of the cessation of payments by the third party

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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