Bankruptcy Law

Pursuant to Article L. 624-16(2) of the Commercial Code, applicable to the receivership procedure by reference from Article L. 631-18, a claim in kind may be made against movable goods incorporated into another good where their separation can be effected without causing damage to them. It is up to the claimant, and not the debtor, to establish the existence in kind of the goods claimed in the debtor's patrimony on the date of the opening of the receivership, and to demonstrate that the separation of the tangible goods incorporated into another good can be effected without damage .

A claim for an item of movable property incorporated into another item is admissible provided that it is identifiable, separable and that its dismantling requires only a possible repair, with no risk of damage to the assets of the debtor company . Similarly, the claim made by the owner of a greenhouse delivered to the debtor in an insolvency procedure and incorporated into real estate, which can be separated without damaging the neighboring property by sawing the posts at the height of the low walls so as not to cause any damage, or by freeing and unscrewing the feet of the sealed posts to prevent them from being blown away or distorted by the weather, is admissible . Engines sold with a retention of title clause may be removed from the vehicles on which they are mounted without causing damage to each of the separate items . Tyres mounted on vehicles may be claimed provided that their removal is not likely to cause any damage to the tyres, wheels or vehicles .

On the other hand, digital controls, the return of which would involve disconnecting the cables, extracting the computer cards, dismantling the control panel, disconnecting and dismantling the electric motors and saving the programmes, cannot be considered, in view of the complexity of the operations, as being in kind at the time of the opening of the receivership proceedings . Similarly, the incorporation of clamps into a new assembly for which they have been specially designed and adapted, and in which each of the components is useful only in relation to the others and to the whole of which it forms part, which entails their incorporation into an assembly line, deprives them of existence in kind and precludes any claim to their price . In addition, notwithstanding any clause reserving ownership, an HVAC contractor who has installed heating, ventilation, plumbing and sanitary equipment in the debtor's building cannot claim them once they have been incorporated into the work and no longer exist in kind .

Cass. com., 10 March 2015, LawLex202100001663JBJ (RJ). See also a contrario, Cass. com., 28 September 2004, LawLex202100003635JBJ (RJ).

Cass. com., 2 November 2016, LawLex202100001661JBJ (LJ).

Cass. com., 5 October 1993, LawLex202100003634JBJ (LJ).

Cass. com., 21 March 2006, LawLex202100001660JBJ (LJ).

CA Douai, 5 June 2014, LawLex202100005233JBJ (LJ).

Cass. com., 24 March 2004, LawLex202100001662JBJ (RJ).

Cass. com., 6 July 1993, LawLex202100003639JBJ (RJ).

Cass. com., 2 March 1999, LawLex202100003362JBJ (RJ).

512. Action in revendication of incorporated property