Bankruptcy Law

The owner of an asset who does not bring an action in revendication within three months of publication of the judgment opening the insolvency procedure is barred from doing so . A contract of sale subject to a retention of title clause, the price of which has been paid, must be considered as having been fully performed before the judgment opening the insolvency procedure, so that a claim filed mor …

Claimant foreclosure

The owner of an asset who does not bring an action in revendication within three months of publication of the judgment opening the insolvency procedure is barred from doing so . A contract of sale subject to a retention of title clause, the price of which has been paid, must be considered as having been fully performed before the judgment opening the insolvency procedure, so that a claim filed more than three months after that judgment is time-barred . Under Article R. 624-13 of the Commercial Code, applicable to the receivership procedure by reference from Article R. 631-31, the same sanction applies to a claimant who, in the absence of the receiver's acceptance within one month of receipt of the claim, fails to refer the matter to the bankruptcy judge within one month of expiry of the time period for response.

The foreclosure of a claim by the owner of an asset held by the debtor does not extinguish his right of ownership  or result in its transfer to the debtor's assets . It does, however, render the right of ownership in the asset unenforceable against the insolvency procedure and makes the asset part of the common pledge of creditors . In addition, the Court of Cassation has ruled that the declaration by a seller of reserved movables of a privileged claim corresponding to unpaid goods does not exempt him from claiming the goods if he wishes to enforce his right of ownership against the insolvency procedure .

Nevertheless, the absence of a claim does not prevent a third party who claims to be the owner of property seized from applying for its segregation in order to oppose the seizing creditor's right . Nor does the non-enforceability resulting from foreclosure prevent the owner from obtaining restitution of his property against the third party purchaser in bad faith . Furthermore, the owner of equipment supplied to the debtor may, even if he has not made a claim within the time-limits, obtain restitution of the equipment after the judgment adopting the continuation plan and putting an end to the receivership procedure, as a result of the irrevocable termination of the lease prior to the opening judgment .

The Court of Cassation was asked to rule on the compliance with Article 17 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789 and Article 1 of the First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, of the sanction of the non-enforceability of the right of ownership to the insolvency procedure. It held that Article L. 624-9 of the Commercial Code does not infringe the claimant's right of ownership , but merely constitutes a restriction on the conditions under which it may be exercised, provided for by law and justified by a reason in the public interest, insofar as the purpose of the framework for the claim is to determine quickly and with certainty the assets likely to be seized by the insolvency procedure so that a decision can be taken, within a reasonable time, on the outcome of the procedure in the interests of all .

C. com., art. L. 624-9, applicable by reference from art. L. 631-18.

Cass. com., 28 September 2004, LawLex202200001322JBJ (RJ).

Cass. com., 5 November 2013, LawLex202100003428JBJ (LJ) ; 4 January 2000, LawLex202100003410JBJ (LJ).

Cass. com. 4 January 2000, supra, holding that in the relationship between the debtor and the lessor of the thing, the absence of a claim does not extinguish the lessor's right of ownership or transfer it to the debtor.

Cass. com., 3 April 2019, LawLex202100001714JBJ (LJ) ; 3 December 2003, LawLex202100003411JBJ (LJ) ; 23 May 1995, LawLex202100003413JBJ (LJ).

Cass. com., 15 October 2013, LawLex202100002281JBJ (LJ).

Cass. com., 26 November 2002, LawLex202100003419JBJ (LJ).

Cass. com., 15 December 2015, LawLex202100003415JBJ (LJ).

Cass. com., 24 March 2004, LawLex202100003420JBJ (RJ).

Cass. com., 14 March 1995, LawLex202100003414JBJ (RJ).

Bankruptcy Law

520. Claimant foreclosure

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520. Claimant foreclosure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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