Bankruptcy Law

In the absence of an agreement or in the event of a dispute, Article L. 624-17 of the Commercial Code  provides that the claim must be brought before the bankruptcy judge who will decide on the fate of the contract in the light of the observations of the creditor, the debtor and the legal representative. Referral to the bankruptcy judge in the context of an action in revendication is not equivalent to the implementation of a compulsory enforcement measure , nor to a legal claim, so that it may be made by the agent of the owner of the property, without the latter being required to justify his authority .

The receiver's decision to continue a current contract, which does not constitute acceptance of the claim, does not exempt the lessor from referring the matter to the bankruptcy judge . Similarly, the response of a receiver who acknowledges that a retention of title clause in respect of a stock of goods sold by a supplier is enforceable against the insolvency procedure, but expresses disagreement as to the value of the goods, does not constitute acceptance of the claim and requires the claimant to refer the matter to the bankruptcy judge within the time period set by Article R. 624-13 of the Commercial Code .

Pursuant to Article R. 624-13(2) of the Commercial Code, if the receiver fails to respond within one month of receiving the request, the petitioner must, under penalty of foreclosure, refer the matter to the bankruptcy judge within a further period of one month from the expiry of the response period. This deadline may be extended to the next working day if it falls on a Sunday . However, property owners living in overseas territories or abroad may not take advantage of the extended deadline provided for in Article 643 of the Code of Civil Procedure . Pursuant to Article R. 624-13, a seller who, in the absence of the receiver's acceptance of his claim within the one-month time period, refers the matter to the bankruptcy judge after the expiry of the one-month time period available to him, must be declared time-barred . The foreclosure resulting from the failure to refer the matter to the bankruptcy judge within the legal time period is likely to apply in the context of an action for reclaim of the price brought by the seller against the factor . On the other hand, a seller who is the beneficiary of a retention of title clause and who has submitted his claim within the prescribed deadline, and who has been informed of his acceptance within the time period set for referring the matter to the bankruptcy judge, attached to the failure to refer the matter to the bankruptcy judge .

The application may only be made to the bankruptcy judge by the claimant, the debtor or the legal representative, to the exclusion of any other person, such as the debtor's factor . In the absence of the receiver's agreement, the bankruptcy judge may rule on the claim, even if it has been made against a third party . On the other hand, where the lessor's right to obtain restitution of the asset under the insolvency procedure has been definitively acquired, the bankruptcy judge does not have jurisdiction to order the attachment of the asset in the hands of a third party holder, since this right is no longer at issue .

Lastly, an action before the bankruptcy judge is inadmissible if it is not preceded by a request to the receiver or, failing that, to the legal representative . Before making a decision, the bankruptcy judge will hear the observations of the interested parties .

Applicable to the receivership procedure on referral from art. L. 631-18.

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

Cass. com., 24 January 2018, LawLex202100001729JBJ (LJ).

Cass. com., 12 April 2005, LawLex202100003395JBJ (RJ).

Cass. com., 21 November 2018, LawLex202100003439JBJ (LJ).

Cass. com., 2 October 2001, LawLex202100001667JBJ (RJ).

Cass. com., 5 November 2003, LawLex202100003399JBJ (LJ) ; 6 March 2001, LawLex202100001669JBJ (LJ).

Cass. com., 12 January 2016, LawLex202100001699JBJ (S).

Applicable to receivership by reference from art. R. 631-31. For an application, see Cass. com. 3 May 2016, LawLex202100001700JBJ (RJ).

Cass. com., 11 October 2016, LawLex202100003401JBJ (LJ).

Cass. com., 28 September 2004, LawLex202100003391JBJ (LJ).

Cass. com., 3 April 2001, LawLex202100003301JBJ (RJ).

Cass. com., 15 March 2005, LawLex202100003394JBJ (LJ).

Cass. com., 7 February 2006, LawLex202100001671JBJ (LJ).

519. Second stage of the procedure