Bankruptcy Law

Transfers of the debtor's real estate or movables, made pursuant to Articles L. 642-18 and L. 642-19 of the Commercial Code, are subject to the prohibitions set out in the first paragraph of Article L. 642-3 . Consequently, neither the debtor, in respect of any of its assets or liabilities, nor the de jure or de facto managers of the legal entity under court-supervised liquidation, nor the relativ …

Beneficiary of the sale

Transfers of the debtor's real estate or movables, made pursuant to Articles L. 642-18 and L. 642-19 of the Commercial Code, are subject to the prohibitions set out in the first paragraph of Article L. 642-3 . Consequently, neither the debtor, in respect of any of its assets or liabilities, nor the de jure or de facto managers of the legal entity under court-supervised liquidation, nor the relatives or allies up to and including the second degree of these managers or of the debtor as an individual, nor persons having or having had the status of controller during the procedure, are permitted, directly or through an intermediary, to submit an offer. Article L. 642-3 adds that such persons are prohibited from acquiring, within five years of the assignment, all or part of the assets included in the assignment, directly or indirectly, as well as from acquiring shares or equity securities in any company whose assets include, directly or indirectly, all or part of these assets, as well as securities giving access, within the same period, to the capital of this company. Beyond the family circle, Article L. 654-12 also prohibits any receiver, legal representative, liquidator, commissioner for the enforcement of the plan or any other person, with the exception of employee representatives, from acquiring on their behalf, directly or indirectly, assets of the debtor if they have participated in any capacity whatsoever in the procedure.

In application of these rules, an offer to purchase made by a former employee of the debtor association, when he was in fact the de facto manager , or a bid or higher bid made by relatives at a public sale of one of the debtor's real estate assets, are inadmissible, up to the second degree, of the managers of the debtor legal entity , or the acquisition of a property belonging to the debtor company by a company whose manager is the father-in-law of the debtor's manager, a fortiori when the bid is significantly lower than the market value of the property . On the other hand, the chartered accountant of a company undergoing court-supervised liquidation, who is neither an organ of the procedure nor a person mandated to intervene in it, cannot be guilty of the offense of acquiring the debtor's assets on his own behalf .

The interposition of persons, within the meaning of Article L. 642-3 of the Commercial Code, refers to the intervention of a legal entity which conceals, in any way whatsoever, the participation of the debtor company's managers in the acquisition transaction . This is the case between the managers of the debtor company and a non-trading property company when the property acquired by the latter does not fall within its corporate purpose, when it does not have the financial resources for the transaction and when a resolution of its general assembly authorizes it to sell the acquired property to a third party, whose managers are the same as those of the debtor . Similarly, a company whose executive officer is the same as that of the debtor may not bid higher in the sale by auction of the debtor's assets, by virtue of its status as an interposed person, even if the bid was made on its own behalf and if the higher bid makes it possible to increase the basis of the creditors' lien and to promote their repayment . A legal entity, whose partner and manager is the same person as the manager of the debtor company, may not invoke the tenant's right of first refusal to purchase the latter's property, provided that it is acting as an intermediary and that the public prosecutor has not requested an exemption from this prohibition . 

The bankruptcy judge may, at the request of the public prosecutor, waive these prohibitions and authorize the transfer to one of the persons referred to in Article L. 642-3, with the exception of the auditors and the debtor in respect of any of his assets . It may be seized by the public prosecutor, the liquidator or the debtor, for the purpose of granting the same derogation for the transfer of low-value movable assets necessary for everyday needs and assets forming part of a farm, as well as for the sale of other movable assets by public auction or amicable adjudication . In fact, it is appropriate to derogate from the prohibition and authorize the transfer of assets dependent on the court-supervised liquidation of the debtor company to the father of its manager when there is an urgent need to find a purchaser of the securities capable of overcoming the denunciation of the short-term credit lines by the banks by restoring their confidence, in the absence of a competing takeover offer, if such a transfer is in the collective interest of the creditors . If the sale by mutual agreement to a person subject to the prohibition concerns one or more assets for a price, exclusive of tax, in excess of the final jurisdiction of the bankruptcy judge, the liquidator must draw up a report on the steps taken to find a transferee . The bankruptcy judge issues a specially reasoned ordinance, after obtaining the opinion of the public prosecutor if the latter is not the petitioner . If the bankruptcy judge's ordinance authorizing an assignment to a person subject to a prohibition is not sufficiently reasoned, he may refer the matter back to the Public Prosecutor if the latter's request is specially reasoned with regard to the derogation from the prohibition .

Finally, the provisions of Articles L. 642-3 and L. 642-20 of the Commercial Code, which in themselves do not affect the property rights of the debtor's spouse with joint ownership of the debtor's assets, may be extended to the sale of an asset that is unrelated to the operation of the business under court-supervised liquidation, and that does not belong in full ownership to the debtor under court-supervised liquidation, without disproportionately affecting the property rights of the debtor or his spouse in relation to the objective of combating fraud and obtaining a sale at the best price .

Cass. com., 8 January 2020, LawLex202300002623JBJ (LJ).

C. com., art. L. 642-20, al. 2 and art. R. 642-39.

CA Versailles, 10 December 2019, LawLex202300004095JBJ (LJ).

Cass. com., 18 February 2014, LawLex202300002547JBJ (LJ).

Cass. com., 3 February 2021, LawLex202200003811JBJ (LJ).

Cass. com., 5 February 2013, LawLex202300005635JBJ (LJ).

Cass. crim., 15 December 2004, LawLex202100001136JBJ (LJ).

Cass. com., 8 March 2017, LawLex202100001135JBJ (LJ).

Cass. com., 14 December 2022, LawLex202300004091JBJ (LJ).

CA Rouen, 15 April 2021, LawLex202300004092JBJ (LJ).

Bankruptcy Law

909. Beneficiary of the sale

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909. Beneficiary of the sale

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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