Bankruptcy Law

In accordance with Article 1355 of the Civil Code, res judicata applies only to what is the subject of the judgment. The subject-matter must be the same, the claim must be based on the same cause of action, it must involve the same parties, and it must be brought by them and against them in the same capacity. If the parties are not the same, the admission or rejection of the claim in a first insol …

Authority of res judicata

In accordance with Article 1355 of the Civil Code, res judicata applies only to what is the subject of the judgment. The subject-matter must be the same, the claim must be based on the same cause of action, it must involve the same parties, and it must be brought by them and against them in the same capacity. If the parties are not the same, the admission or rejection of the claim in a first insolvency procedure is not res judicata in the second procedure opened against the same debtor . There is no res judicata effect, and a contestation of claim cannot be considered to have been decided if the judgment establishing the claim has been set aside for having been handed down in the context of an enforcement procedure that should have been discontinued by virtue of the principle of the stay of proceedings . On the other hand, the fact that the ordinance of the bankruptcy judge is vitiated by an irregularity does not prevent it from acquiring the authority of res judicata where no appeal has been lodged against it .

There are several consequences of res judicata. As the irrevocable decision admitting a claim as a liability is res judicata as to the date on which the declared claim arose, its anteriority in relation to the date on which the receivership was opened can no longer be contested . The authority of res judicata attached to an ordinance admitting a claim constitutes an objection, which justifies the inadmissibility of a claim for payment of a sum with which the creditor's claim has been set off . Thus, a debtor cannot be ordered to pay contractual interest not provided for in the decision admitting the claim as a liability . Furthermore, res judicata extends to the nature of the security that accompanies the admitted claim, so that an unmentioned mortgage security can no longer be set up by the creditor . The res judicata effect of an irrevocable decision admitting a claim as a liability in the insolvency procedure of a civil partnership is binding on its partners . However, it does not prevent a partner, sued in enforcement of his subsidiary obligation to pay the company's debts, from relying on the limitation period set out in Article 1859 of the Civil Code against the creditor, which is distinct from the limitation period resulting from the claim against the company and is specific to the creditor's action against the partner .

An ordinance by the bankruptcy judge admitting a preferential claim is res judicata with regard to the guarantor , who cannot be ordered to pay a lesser sum than that admitted to take account of payments not taken into consideration by the bankruptcy judge . Conversely, the authority of res judicata attached to the ordinance of the bankruptcy judge in the insolvency procedure opened against the principal debtor, who has only admitted a mortgage claim in principal, may be claimed by his joint and several debtor . The joint and several debtor of a loan may, in this capacity, invoke against the bank the res judicata effect of the decision irrevocably admitting the claim as a liability in the debtor's insolvency procedure, for a lesser sum than that for which it is being sued .

On the other hand, the guarantor cannot ask to be discharged from his obligation because of the fault committed by the creditor since the authority of res judicata acquired by the decision admitting the claim and the publication of the statement of claims in the BODACC (Official Bulletin of Civil and Commercial Announcements), which he has not contested, limits his action to exceptions that are personal to him . In fact, the guarantor may always invoke the exceptions based on the absence of proof regarding the guarantee of the principal debtor's commitments under one of the accounts in question and the nullity of its undertaking on the grounds of fraud . The guarantor may also rely on the creditor bank's failure to comply with its obligations to the guarantor .  Once the ordinance has become irrevocable, the guarantor may rely on the rejection of the secured claim in the insolvency procedure of the cofiduciary, unless the rejection is due to a cause personal to the cofiduciary . Similarly, a decision to admit a claim to the principal debtor's liabilities cannot be enforced against the guarantor where the creditor's action against the guarantor, even if joint and several, is time-barred at the date of the declaration of claim . In addition, in the absence of proof of publication in the BODACC of the notice of filing at the registry of the statement of claims, the admission decision does not have the force of res judicata with respect to the mortgage guarantor .

A decision admitting a claim for contractual indemnities as a liability is res judicata with regard to the debtor's joint and several tenant, provided that no appeal has been lodged against it, so that the creditor may summon him to pay .

The res judicata decision rendered by the court having jurisdiction in the insolvency procedure in relations between the creditor and the debtor is also binding on the third party settlor, as regards the existence and amount of the secured claim, if he has not exercised the remedy available to him under Article R. 624-8 from the Commercial Code , applicable to the receivership procedure by reference to Article R. 631-29. The admission by the bankruptcy judge of a claim under the debtor's liabilities, which has the force of res judicata with regard to its existence and amount, unless the latter contests the statement of claims filed with the court registry, has the effect of rendering inadmissible any subsequent contestation that he may raise with regard to the same claim . If the receiver responsible for the enforcement of the plan does not lodge a complaint within 15 days of the publication of the notice of filing of the statement of claims declared as liabilities of the debtor, this confers on the statement of claims the authority of res judicata, which precludes an action for annulment of their registration . Lastly, the authority of res judicata attached to a decision admitting a claim precludes an action for nullity brought in order to retroactively nullify the property leasing contract that gave rise to it .

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Bankruptcy Law

505. Authority of res judicata

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505. Authority of res judicata

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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