Bankruptcy Law

Pursuant to Article L. 624-16 of the Commercial Code , movable goods may only be claimed if they existed in kind, in the hands of the debtor, on the date of the opening judgment and not, as many claimants have attempted to maintain, on the date of the claim . Where the debtor has resold the goods and the claim can only be made against the sale price, the goods must have existed in their initial st …

Existence in kind of the property claimed

Pursuant to Article L. 624-16 of the Commercial Code , movable goods may only be claimed if they existed in kind, in the hands of the debtor, on the date of the opening judgment and not, as many claimants have attempted to maintain, on the date of the claim . Where the debtor has resold the goods and the claim can only be made against the sale price, the goods must have existed in their initial state, not on the date of the judgment opening the receivership, but on the date of delivery to the sub-purchaser .

The condition of existence in kind means that the goods must have been preserved in their initial state, i.e. without having undergone any transformation likely to alter their substance. The claimant of a stock of fry must therefore prove that it was delivered less than eighteen months before the opening judgment in order to prove that the goods claimed have not completed their maturation process and have not undergone irreversible transformation . Precious stones no longer exist in kind on the date of the opening of the insolvency procedure, as their setting prior to that date makes identification and individualization impossible . Similarly, the slaughtering and cutting up of animals delivered to the debtor prior to the opening of an insolvency procedure constitutes a transformation which prevents the debtor from considering that they are in kind . However, not every operation performed on the thing can be analyzed as a transformation that precludes the finding that it exists in kind. In fact, sawing and fitting operations, which do not affect the substance of the goods, do not call into question their existence in kind and do not prevent them from being claimed . The incorporation of musts contributed by cooperative members into one another and the process of development and vinification of the harvests contributed do not have the effect of transforming their substance either, so that they may be considered to be present in kind with the debtor despite their transformation . Similarly, the mere dyeing of yarns delivered by the seller, before any weaving operation, does not have the effect of transforming them and preventing them from being identified and claimed .

The existence of goods in kind in the debtor's assets may be established even if they are physically held by a third party . A seller who claims goods subject to a retention of title clause is entitled to obtain restitution of the goods, whether the debtor holds them on his premises or whether they are held by his legal representative on other premises . However, a claim to movable property held by a third-party company belonging to the same group of companies as the debtor company placed in an insolvency procedure is not admissible where the claiming owner does not establish that this sister company held it in kind on behalf of the debtor at the time the insolvency procedure was opened . Similarly, a car of which the debtor has transferred possession to a third party in payment of the sale price of his previous vehicle, prior to the opening judgment, cannot be considered as being held in kind in his patrimony on that date and cannot be the subject of a claim .

Proving the existence in kind of the goods delivered may, in certain circumstances, prove tricky. This is the case where the goods claimed were in the process of being manufactured on the date of the opening judgment: the owner making the claim cannot make up for their material non-existence on that date simply by being able to identify them at a later date . Similarly, the fact that the goods entrusted to the debtor have not been returned to the supplier, or invoiced by the latter, is not sufficient to establish that they still exist in kind in the debtor's inventory on the date the receivership is opened .

Proof is nevertheless facilitated by the obligation imposed on debtors by Article L. 622-6 of the Commercial Code  to draw up an inventory of their assets, which lists the assets they hold that may be claimed by a third party . Paragraph 5 of the text specifies that the absence of an inventory does not prevent a claim from being made. The case law goes even further, sometimes lightening the burden of proof, sometimes reversing it, when the inventory has not been drawn up or proves to be incomplete, or even when the parties to the procedure oppose its drawing up. Thus, a seller subject to a retention of title clause who, in order to avoid any dispute, attempted to have an inventory drawn up of the stock of goods still held by the debtor immediately after the opening judgment, which the debtor opposed, may, in order to establish the existence of his goods in kind, simply provide an estimate of their daily consumption by the debtor . Where the receiver refuses to provide an inventory of the debtor's assets, the claimant may prove their existence in kind simply by producing the order and delivery slips . Other decisions consider that in the presence of an incomplete, summary or unusable inventory, which is equivalent to an absence of inventory, the burden of proof that the property claimed, previously held by the debtor, no longer exists in kind on the date of the opening judgment, lies with the legal representative  and/or the debtor, failing which the claim must be upheld . The burden of proof is also reversed when the inventory drawn up by an auctioneer does not itemise the spare parts claimed by a creditor, who benefits from a retention of title clause, even though the creditor has provided a precise listing , or when the inventory of the debtor's assets does not mention the details of the tyres sold by a creditor even though the creditor has requested the legal representative to do so . Bottles of wine stored with a debtor who does not demonstrate, in the absence of an inventory drawn up within eight days of the opening judgment, that they were no longer in his possession at that date, may be claimed by their owner . However, the failure of the receiver to draw up an inventory does not exempt the seller from establishing the identity between the goods he has delivered and those existing in kind on the date of the opening judgment .

Applicable to the receivership procedure by reference from art. L. 631-18.

Cass. com., 15 March 2005, LawLex202100001665JBJ (RJ) ; 29 November 2016, LawLex202100001666JBJ (S).

Cass. com., 10 May 2012, LawLex202100001702JBJ (LJ).

Cass. com., 8 March 2017, LawLex202100001706JBJ (LJ).

Cass. com., 4 May 2017, LawLex202100001704JBJ (LJ).

Cass. com., 31 May 2016, LawLex202100003406JBJ (LJ).

Cass. com., 28 September 2004, LawLex202100003635JBJ (RJ).

Applicable on reference from art. L. 631-14.

See, for an application, Cass. com. 17 May 2017, LawLex202100003409JBJ (RJ).

Cass. com., 26 June 2001, LawLex202100003404JBJ (RJ).

Cass. com., 13 April 1999, LawLex202100003403JBJ (LJ).

Cass. com., 1 December 2009, LawLex202100001542JBJ (LJ).

Cass. com., 3 January 1995, LawLex202100001726JBJ (RJ).

Bordeaux, 22 November 2021, LawLex202200000711JBJ (S) ; Cass. com., 25 October 2017, LawLex202100001653JBJ (LJ).

CA Grenoble, 8 October 2020, LawLex202200000712JBJ (RJ).

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

CA Bordeaux, 22 November 2021, cited above.

Cass. com., 15 December 1992, LawLex202100003402JBJ (RJ).

Cass. com., 11 June 2014, LawLex202100001658JBJ (LJ).

Cass. com., 20 October 2009, LawLex202100003408JBJ (RJ).

Cass. com., 22 March 1994, LawLex202100001659JBJ (RJ).

Cass. com., 26 February 1991, LawLex202100001655JBJ (RJ).

Cass. com., 11 July 2006, LawLex202100001656JBJ (LJ).

Cass. com. 6 March 1990, LawLex202200003841JBJ (LJ), emphasizing however that the claimant must compensate the debtor for the dyeing and rewinding operation.

Cass. com., 3 December 1996, LawLex202100001701JBJ (LJ).

Bankruptcy Law

511. Existence in kind of the property claimed

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

511. Existence in kind of the property claimed

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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