Bankruptcy Law

Under Article L. 526-1(2) of the Commercial Code, an individual registered in the national register of companies may declare that his or her rights to any property, whether built or unbuilt, which he or she has not used for business purposes, are non-seizable. This declaration, which is published, only has effect with regard to creditors whose rights arise, after this publication, from the declara …

Non-seizable assets

Under Article L. 526-1(2) of the Commercial Code, an individual registered in the national register of companies may declare that his or her rights to any property, whether built or unbuilt, which he or she has not used for business purposes, are non-seizable. This declaration, which is published, only has effect with regard to creditors whose rights arise, after this publication, from the declarant's professional activity. It therefore prevents any liquidation of the property concerned by the declaration.

A debtor's declaration of unseizability is only enforceable against his court-supervised liquidation if it has been duly publicized , or in a suspect period before the 12 March 2014 Ordinance  came into force. The liquidator may therefore, in the collective interest of the creditors of the court-supervised liquidation and in order to reconstitute their common pledge, raise the unenforceability of the debtor's declaration of non-seizability in support of an application to sell the property declared non-seizable, in the absence of full and regular publicity of the declaration . If the person is registered in the Trade and Companies Register, the Special Register of Commercial Agents or the Special Register of Limited Liability Companies, the declaration of non-seizability must be mentioned therein . Since the declaration of non-seizability has been duly published in the RCS, the absence of its mention on the Kbis extract issued to the liquidator, which constitutes an omission or a clerical error on the part of the commercial court registrar, does not affect the debtor's rights, nor the regularity of the publication, carried out prior to the opening ruling, so that the liquidator's request that the declaration of non-seizability be deemed unenforceable against the debtor's court-supervised liquidation must be rejected . Similarly, the bankruptcy judge may not authorize the liquidator to proceed with the sale of an immovable whose unseizability, published prior to the opening of the insolvency procedure, is enforceable against him , even if there is an admitted creditor to whom the declaration of unseizability of the property is unenforceable , since he can only represent the collective interest and not that of certain creditors . Similarly, the liquidator cannot be authorized to act for the partition of the indivision between the debtor and his wife, or for the licitation of an immovable property which has been the subject of a declaration of unseizability duly published prior to the court ruling opening the judicial liquidation . Lastly, the declaration of unseizability remains enforceable against the court-supervised liquidator, even if the debtor ceased trading before the opening of the court-supervised liquidation .

On the other hand, a declaration of non-seizability published after the opening of an insolvency procedure, even a safeguard procedure in which the debtor retains all his powers, cannot be set up against the liquidator . Similarly, when all the debtor's creditors have declared their claims prior to the declaration of unseizability of his immovable, the liquidator acting in their interest may proceed with its forced sale .

Non-seizability cannot be carried over to the auction price, which must be remitted to the liquidator after payment of the registered creditor . By way of exception, the sale of unseizable assets may, under Article L. 642-22, II of the Commercial Code, be authorized by the bankruptcy judge or the court, when the request is made by the debtor and the sale is likely to facilitate the realization of the assets seized as a result of the opening of the court-supervised liquidation. In this case, the compensation for the value of these assets replaces them in the assets from which they originate.

See, when this is the case, Cass. com. 13 March 2012, LawLex202100002054JBJ (LJ); CA Douai, 23 September 2010, LawLex202300005378JBJ (LJ).

Ordinance 2014-326 of 12 March 2014 concerning reform of the prevention of business difficulties and insolvency proceedings. See, for an application of the previous rules, CA Reims, 2 July 2019, LawLex202200006895JBJ (LJ).

Cass. com.,10 March 2021, LawLex202100005972JBJ (LJ).

Cass. com., 17 November 2021, LawLex202200002025JBJ (LJ).

Cass. com., 25 October 2017, LawLex202300005394JBJ (LJ).

Cass. com., 30 January 2019, LawLex202300005255JBJ (LJ) ; 15 November 2016, LawLex202100001446JBJ(LJ) ; 15 November 2017, LawLex202200001919JBJ (LJ).

Cass. com., 14 December 2022, LawLex202300005942JBJ (LJ).

Cass. com., 4 May 2017, LawLex202200007569JBJ (LJ); 28 June 2011, LawLex202100001438JBJ (LJ); 22 March 2016, LawLex202100001449JBJ (LJ).

Cass. com., 24 March 2015, LawLex202100001440JBJ (LJ).

Contra, see CA Orléans, 15 May 2008, LawLex202300005376JBJ (LJ), holding that the declaration of unseizability is not enforceable against the insolvency procedure when the rights of the principal creditors arose prior to its publication, even if this was prior to the opening ruling; CA Aix-en-Provence, 3 December 2009, LawLex202300005380JBJ (LJ); CA Orléans, 6 April 2011, LawLex202300005377JBJ (LJ); CA Bourges, 10 March 2011, LawLex202300005379JBJ (LJ).

Cass. com., 14 March 2018, LawLex202100001450JBJ (LJ) ; 5 May 2015, LawLex202300005507JBJ (LJ) .

Cass. com., 17 November 2021, LawLex202100006064JBJ (LJ); CA Pau, 20 July 2020, LawLex202200007839JBJ (LJ).

Bankruptcy Law

915. Non-seizable assets

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

915. Non-seizable assets

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise