Bankruptcy Law

Under ordinary contract law, the condition precedent attached to an offer to purchase prevents the sale from taking place until it has been fulfilled. In accordance with Article 1304 of the Civil Code, a condition is suspensive when its fulfillment renders the obligation pure and simple. Thus, even if the ordinance of the bankruptcy judge authorizing the sale by private treaty of one of the debtor's assets has not been the subject of any remedy and has acquired the authority of res judicata, the assignee, who can only be bound by the terms of his offer, may refuse to sign the deed of sale, by invoking a legitimate reason based on the non-fulfillment of any conditions attached to his offer , even if they were not included in the project submitted to the bankruptcy judge for approval , or if the ordinance authorizing the sale does not expressly mention them .

The potential buyer may therefore refuse to sign the deed of sale if the liquidator does not reply to his letter mentioning items missing from the inventory, even though the purchase offer mentions that the equipment acquired must be present in kind on the company's premises when the inventory is drawn up , so that the private treaty sale of these assets is null and void . He may also legitimately refuse to sign the deeds necessary to complete the private treaty sale of a business, when the liquidator and bankruptcy judge have not accepted the conditions precedent linked to obtaining a loan and to the activities he expressly intended to retain, even if he awkwardly expressed these reservations in his offer, since it is not up to these bodies to be the courts of the content of the offer . The same is true when, prior to the ordinance of the bankruptcy judge, it had not been brought to his attention that the former operator had already had her personal approval withdrawn, and that he would have to apply for authorization , or when the liquidator terminated the leasing contracts, even though the offer was conditional on the continuation of the current contracts . A promisor who withdraws his offer to purchase a business on the grounds that the condition precedent relating to the existence of a commercial lease had not been fulfilled at the time of the bankruptcy judge's decision is not liable, since the agreement given by the manager of the lessor company to the liquidator to grant a lease to the purchaser demonstrates that the lease no longer existed .

On the other hand, an offeror who refuses to proceed with the sale of the business ordered by the bankruptcy judge, without any legitimate reason based on the non-fulfillment of the suspensive conditions attached to the offer, commits a fault for which he is liable . The transferee may not bring an action for annulment of the sale of the business for failure to comply with the terms of his offer, since, having been informed that the opening court ruling had only ordered a provisional continuation of the business, he knew that the cessation of activity had necessarily led to the discontinuation of the lines taken over, the continuation of which the liquidator had not guaranteed .

Cass. com., 17 October 2018, LawLex202100001524JBJ (LJ).

CA Bordeaux, 5 January 2017, LawLex202300005340JBJ (LJ).

Cass. com., 13 March 2012, LawLex202300005443JBJ (LJ).

Cass. com., 27 September 2016, LawLex202100001516JBJ (LJ).

Cass. com., 19 February 2013, LawLex202300005593JBJ (LJ).

CA Montpellier, 25 October 2011, LawLex202300005372JBJ (LJ).

CA Orléans, 14 June 1994, LawLex202300005594JBJ (LJ).

Cass. com., 2 November 2005, LawLex202300005348JBJ (LJ).

Cass. com., 25 May 1993, LawLex202300005083JBJ (LJ).

Cass. com., 14 June 1994, LawLex202300005594JBJ (LJ).

928. Suspensive condition