Bankruptcy Law

In accordance with Article L. 624-18 of the Commercial Code , the price or part of the price of movable property, whether tangible or intangible, which exists in kind, may be claimed if it has not been paid, settled in value or set-of between the debtor and the buyer at the date of the opening judgment. The text refers to the case where the debtor resells the item before the price has been paid to …

Claiming the resale price of the property

In accordance with Article L. 624-18 of the Commercial Code , the price or part of the price of movable property, whether tangible or intangible, which exists in kind, may be claimed if it has not been paid, settled in value or set-of between the debtor and the buyer at the date of the opening judgment. The text refers to the case where the debtor resells the item before the price has been paid to the original seller. The right of revendication applies to the resale price of the item, which is no longer materially part of the debtor's assets.

For both price claims and asset claims, a preliminary procedure before the receiver or, failing that, the legal representative, is a mandatory prerequisite . On the other hand, it is not required that the property whose price is claimed exists in kind in the debtor's assets on the date of the opening judgment , but only on the date of its delivery to the sub-purchaser . Thus, the resale, prior to the opening judgment, of certain goods that remain in their original condition does not prevent the claim for the price due by the sub-purchasers  from being asserted, subject to their identification, provided that the goods resold have not been the subject of any payment between the debtor and the sub-purchaser, either before or after the opening of the procedure .

Article L. 624-18 requires that the price has not been paid, settled in value or set-of between the debtor and the buyer at the date of the judgment initiating the procedure. According to the Court of Cassation, the gift in payment made by the sub-purchaser does not constitute a method of payment that prevents the owner from reclaiming the price of the assets . Similarly, the entry in an account of a debt corresponding to the unpaid sale price of goods subject to a retention of title clause does not constitute payment of that debt if the parties have not expressly stated their intention to settle their relations by means of a current account mechanism .

The owner may claim the price of the property from the debtor , without it being necessary to distinguish whether or not the price was paid prior to the claim . On the other hand, where the resale price has been paid on the date of the claim, it must still be established that this payment was made after the opening judgment . Where the debtor, after reselling the item to a sub-purchaser, assigns his claim for the price to a factor, the factor cannot rely on subrogation in his rights to defeat the retention of title clause asserted by the original seller, which is enforceable against the insolvency procedure . Lastly, the seller with a reservation of title clause may not claim the price from the debtor's factor, who is subrogated to the debtor's rights, where the resale price of the goods has been paid to the factor at the time the claim is made .

The owner may also claim the price of the property from the sub-purchaser. The seller of an item subject to a retention of title clause which is resold by the debtor to a third party may claim the part of the price still owed by the latter and which is subrogated, from the time of the resale, to the item of which he has remained the owner, as long as the sub-purchaser has not paid the price to his seller . The assignment of a claim following the resale of the goods by the debtor, invoked by a bank, cannot defeat the claim of the seller with reservation of title, since the resale price is subrogated to the goods of which he remains the owner .

By the effect of subrogation in rem, the original seller is entitled to claim his goods from the sub-purchaser, without the sub-purchaser being able to raise the defenses that he could have raised against the debtor , such as the defectiveness of the equipment delivered .  Where the sub-purchaser is itself subject to an insolvency procedure, the claimant's action must be considered as a personal action and not as an action in rem, i.e. as an action for payment, which can only be rejected in the case of claims arising prior to the opening judgment .

In accordance with Article R. 624-16 of the Commercial Code, applicable to the receivership procedure by reference to Article R. 631-31, in the event of a claim on the price of the goods, the corresponding sums paid by the sub-purchaser after the opening of the procedure must be paid by the debtor or the receiver into the hands of the legal representative. The latter is then responsible for remitting them to the claimant up to the amount of his claim. The legal representative must only remit to the claimant subrogated to the debtor's rights the amount paid to him after the opening of the procedure by the sub-purchaser or a third party subrogated to the debtor's rights against the sub-purchaser .  The sale price of goods resold by the debtor must be claimed in priority to any other claim, where it is established that the price was paid after the opening judgment . The sums paid by the sub-purchaser after the commencement of his action in revendication may only be attributed to the owner of the thing if they were paid to the debtor before the decision in favor of the claimant .

Finally, abandoning the claim for the price of recovered parts does not necessarily mean abandoning the claim for the price of all the other parts .

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

Cass. com., 21 June 2015, LawLex202100003664JBJ (LJ).

Cass. com., 26 June 2001, LawLex202100003404JBJ (RJ) ; 7 April 2009, LawLex202100003663JBJ (RJ) ; 24 April 2007, LawLex202100003646JBJ (LJ) ; 2 March 2010, LawLex202100003658JBJ (LJ) ; 7 November 2018, LawLex202100003668JBJ (RJ).

Cass. com., 27 June 1989, LawLex202100003644JBJ (LJ).

Cass. com., 10 July 2001, LawLex202100003645JBJ (RJ).

Cass. com. 5 January 1999, LawLex202100003642JBJ (RJ), noting the refusal of the sub-purchaser to accept the bill of exchange drawn by the debtor.

Cass. com., 20 June 1989, LawLex202100001734JBJ (LJ).

Cass. com., 18 January 2011, LawLex202100001728JBJ (LJ); Cass. com., 3 January 1995, LawLex202100001726JBJ (RJ).

Cass. com., 5 June 2007, LawLex202100003667JBJ (LJ).

Cass. com., 6 October 2009, LawLex202100003666JBJ (LJ).

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

Cass. com., 5 December 2018, LawLex202100001727JBJ (LJ).

Cass. com., 5 October 1993, LawLex202100003640JBJ (RJ).

Cass. com., 20 September 2005, cited above.

Cass. com. 14 June 2017, LawLex202100003641JBJ (RJ); 5 November 2003, LawLex202100001648JBJ (RJ).

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

Cass. com., 3 November 2015, LawLex202100001703JBJ (RJ).

Cass. com., 14 May 2008, LawLex202100003643JBJ (LJ).

Cass. com., 30 May 2006, LawLex202100003662JBJ (LJ).

Cass. com., 30 May 2006, cited above; 20 September 2005, LawLex202100003396JBJ (LJ).

Cass. com., 3 December 2003, LawLex202100001731JBJ (RJ).

Bankruptcy Law

523. Claiming the resale price of the property

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523. Claiming the resale price of the property

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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