Bankruptcy Law

A contract is said to be commutative when each of the parties undertakes to procure for the other a benefit which is regarded as equivalent to that which he receives . Under Article L. 632-1, I, 2° of the Commercial Code, any commutative contract in which the debtor's obligations significantly exceed those of the other party is null and void if it has been entered into since the date of cessation  …

Unbalanced commutative contracts

A contract is said to be commutative when each of the parties undertakes to procure for the other a benefit which is regarded as equivalent to that which he receives . Under Article L. 632-1, I, 2° of the Commercial Code, any commutative contract in which the debtor's obligations significantly exceed those of the other party is null and void if it has been entered into since the date of cessation of payments. The imbalance between the obligations of the debtor and those of its co-contractor is assessed, at the date of conclusion of the contract, solely with regard to the obligations contained therein and not with regard to the entire relationship between the parties .

Pursuant to Article L. 632-1, a debtor's contribution to a non-trading property company (SCI) must be cancelled if, in return, the debtor has not received rights in proportion to those allocated to other partners who have made a much smaller contribution than the debtor . Similarly, the sale of shares during the suspect period is null and void where there is an imbalance in reciprocal benefits to the detriment of the debtor transferee due to the deteriorated financial situation of the company whose shares have been sold . On the other hand, the sale, during the suspect period, of shares in a non-trading property company (SCI) for a symbolic one euro does not constitute an unbalanced contract where the transferee has undertaken to assume the company's liabilities, even though the deed of sale excludes any guarantee of liabilities .

A community liquidation statement, included in a final agreement settling the effects of the divorce and concluded after the date of cessation of payments, does not escape the nullity of acts performed during the suspect period, even if it contains provisions relating to maintenance claims or compensatory benefits , if it reveals a significant imbalance to the detriment of the debtor. Similarly, a deed of partition of the community drawn up during the suspect period by spouses following their divorce may be analyzed as a commutative contract which is liable to nullity  if it reflects a significant imbalance which impoverishes the debtor's assets. This is not the case, however, where the value of the business included in the deed of partition, drawn up during the suspect period, has not been overestimated .

Employment contracts entered into by the debtor since the date of cessation of payments are also null and void if they provide for remuneration that is out of proportion to the work performed, even if the negotiations were initiated prior to that date . Apprenticeship contracts  or qualification contracts  signed during the suspect period are also regularly null and void where there is an imbalance between the parties' performances, resulting from the debtor company's inability, at the time they were signed, to make a financial commitment, over several years, to pay the employee a constantly increasing remuneration.

Lastly, a settlement that provides for the reinstatement of a former employee in return for the latter waiving the balance of his redundancy pay is void where the chances of recovery of the latter are uncertain, the annual salary provided for is close to the amount of the pay and the need for his post is not justified . The debtor's obligation, as a party to a settlement, to waive its right to rely on a claim in return for payment of a very small part of it, is also a source of manifestly excessive disproportion and establishes the seriously unbalanced nature of the obligations agreed to by both parties . On the other hand, a memorandum of understanding, under which the lessee-manager undertakes to pay the lessor the cost of dismissing eleven employees, cannot be annulled on the grounds that it is unbalanced because, given the nature of the leased business, the debtor was at fault in hiring such a large number of employees .

Cass. com., 10 December 2002, LawLex202100001944JBJ (RJ).

Cass. soc., 15 June 2004, LawLex202100001956JBJ (LJ) ; 29 October 2002, LawLex202100001947JBJ (LJ).

Cass. com., 27 November 2001, LawLex202100001946JBJ (LJ).

CA Paris, 28 June 2006, LawLex202100005139JBJ (LJ).

Cass. com., 8 November 2017, LawLex202200008719JBJ (LJ).

Cass. com., 3 May 2011, LawLex202100003695JBJ (LJ).

Cass. com., 27 May 2014, LawLex202200008727JBJ (LJ).

Cass. 3e civ., 13 October 2016, LawLex202100003696JBJ (RJ).

Cass. com., 7 November 2006, LawLex202100003710JBJ (LJ).

Cass. 1re civ., 3 June 2003, LawLex202100003692JBJ (LJ).

Cass. com., 15 June 1976, LawLex202100003689JBJ (LJ).

Cass. soc., 21 November 2000, LawLex202100003693JBJ (LJ).

Cass. com., 12 June 2019, LawLex202200008717JBJ (LJ).

Bankruptcy Law

470. Unbalanced commutative contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

470. Unbalanced commutative contracts

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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