Bankruptcy Law

Under Article L. 622-13 of the Commercial Code , “[t]he receiver alone has the power to require performance of ongoing contracts by providing the promised service to the debtor's co-contractor”. Consequently, the court initiating an insolvency procedure cannot itself decide on the fate of an ongoing contract . Furthermore, in receivership procedures with the appointment of a receiver, the debtor i …

Prerogative of the receiver or the debtor

Under Article L. 622-13 of the Commercial Code , “[t]he receiver alone has the power to require performance of ongoing contracts by providing the promised service to the debtor's co-contractor”. Consequently, the court initiating an insolvency procedure cannot itself decide on the fate of an ongoing contract . Furthermore, in receivership procedures with the appointment of a receiver, the debtor is not entitled to waive the continuation of a contract on his own . In such cases, the receiver alone is competent to continue or waive the contract, irrespective of the nature of his mission .

In the absence of a receiver, the law of 25 January 1985  required the debtor to apply to the bankruptcy judge  for authorization to continue ongoing contracts. Authorization was only required to demand performance of a contract, not to renounce it . For example, a debtor's decision to continue an existing lease contract was null and void in the absence of prior authorization from the bankruptcy judge . Article L. 627-2 of the Commercial Code now stipulates that “[t]he debtor shall exercise, with the assent of the legal representative, the option available to the receiver to continue current contracts and to request termination of the lease pursuant to Articles L. 622-13 and L. 622-14. In the event of disagreement, the matter may be referred to the bankruptcy judge by any interested party”. In fact, the legal representative appointed in an insolvency procedure without a receiver cannot be held responsible for the irregular continuation of a lease contract, nor for the failure to terminate it, since his assent was not sought by the debtor, the only person entitled to exercise the option in such cases .

Whether the option lies with the receiver or the debtor, the Court of Cassation specifies that the option to continue ongoing contracts never prevents the continuation of proceedings to terminate a contract for non-performance of obligations to perform .

Applicable to the receivership procedure by reference from art. L. 631-14 C. com.

Cass. com., 7 February 2012, LawLex202100002214JBJ (LJ).

Cass. com., 28 January 1997, LawLex202100005037JBJ (RJ).

CA Bordeaux, 4 August 2015, LawLex202100005081JBJ (S).

Law No 85-98 of 25 January 1985 on the receivership and liquidation of companies, art. 141.

Cass. com., 6 July 1999, LawLex202100005159JBJ (RJ).

Cass. com., 9 January 1996, LawLex202100005141JBJ (RJ) ; 22 October 1996, LawLex202100005167JBJ (RJ).

Cass. com., 6 May 1997, LawLex202100005076JBJ (RJ).

Cass. com., 5 February 2020, LawLex202100005164JBJ (RJ).

Cass. com., 28 May 1996, LawLex202100002309JBJ (RJ) ; 26 October 1999, LawLex202100002310JBJ (LJ).

Bankruptcy Law

366. Prerogative of the receiver or the debtor

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366. Prerogative of the receiver or the debtor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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