Bankruptcy Law

In accordance with Article L. 642-19(1) of the Commercial Code, the bankruptcy judge may authorize the sale by private contract of the debtor's other assets, at the price and subject to the conditions determined by the court. The sale by private contract of movable assets can only be ordinanced if these assets are at the debtor's disposal. The unavailability of movable assets, which results from t …

Sale by private contract

In accordance with Article L. 642-19(1) of the Commercial Code, the bankruptcy judge may authorize the sale by private contract of the debtor's other assets, at the price and subject to the conditions determined by the court. The sale by private contract of movable assets can only be ordinanced if these assets are at the debtor's disposal. The unavailability of movable assets, which results from the stay of enforcement of the court ruling that their seizure for sale by a creditor is null and void, precludes the bankruptcy judge from ordering their transfer by private contract .

In the event of a sale by private contract, the bankruptcy judge may request that the proposed amicable sale be submitted to him, in order to verify that the conditions set by him have been respected .

The bankruptcy judge who sets the price of a piece of furniture must take a number of factors into account: the debtor cannot claim that his client file has not been sold at the right price when the bankruptcy judge has taken into account the transfer to another agency of several rental or condominium management mandates and the failure to produce the register of mandates, or the absence of any guarantee as to the consistency of this file, to set the price at EUR 2,500 . In the event of an offer providing for a right of substitution, the bankruptcy judge may decide, without imposing any additional burden on the substitute purchaser, that the latter is not relieved of his obligation to pay the purchase price .

A merchant who has made an offer to purchase the debtor's business by private contract can no longer sue for unenforceability of the sale when it has been authorized by an ordinance of the bankruptcy judge, which has the force of res judicata, and when he has been duly summoned to appear before a notary, who has received the deed in the authentic form, notified him of it by extrajudicial document, then registered and published it . Indeed, since the sale is perfected as soon as the ordinance of the bankruptcy judge is issued, subject to the suspensive condition that the decision acquires the force of res judicata, the purchaser incurs liability when, without legitimate reason, he withdraws his offer to purchase an item of the movable assets of the debtor in a court-supervised liquidation . However, if there is a legitimate reason, the bidder may refuse to sign the deed of sale. The reversal of the judgment opening the debtor's court-supervised liquidation renders ineffective the order of the bankruptcy judge ordering the sale by private treaty of the debtor's goodwill, so that the assignee is no longer obliged to acquire it . The offeror may also refuse to sign the deed of sale if, prior to the order of the bankruptcy judge ordering the sale of the leasehold, he has not been informed of the existence of a right-of-way servitude at his expense concerning access to two parking spaces located at the back of the courtyard, which restricts the use of the leased premises, given that the contents of the leased premises do not correspond to the lease contract providing for exclusive use of the courtyard . Nor can he be reproached for refusing to enter into the deed of sale if he is concerned by a summons to pay in respect of the resolutory clause, so that he cannot be sure of obtaining the right to the lease due to non-payment of rent .

Lastly, the bidder may decide to withdraw his offer if the order of the bankruptcy judge authorizing the transfer does not provide for the debtor of the costs inherent in the sale, thus preventing the meeting of consents, in the absence of agreement on the thing and on the price, notwithstanding the bankruptcy judge's subsequent attempt to perfect the sale retroactively by adopting a new order correcting the imprecision .

Where the sale has taken place and the transferee discovers that it concerns polluted property, he may bring an action for liability against the liquidator, who is personally obliged, in the event of the transfer of a facility classified for environmental protection, to identify the chemical products and waste it contains, and to clean them up before the transfer .

Orders issued in application of Article L. 642-19 must be notified to the debtor by the court registrar, and must be provided to the inspectors by simple letter .

Cass. com., 2 June 2015, LawLex202300005656JBJ (LJ).

CA Paris, 18 December 2014, LawLex202300005137JBJ (LJ).

Cass. com., 8 July 2014, LawLex202300005079JBJ (LJ).

Cass. com., 14 November 2019, LawLex202300005081JBJ (LJ).

Cass. com., 7 July 2004, LawLex202300005588JBJ (LJ).

Cass. com., 7 June 2005, LawLex202300005590JBJ (LJ).

Cass. com., 31 May 2016, LawLex202300005591JBJ (LJ).

CA Paris, 13 October 2009, LawLex202300005341JBJ (LJ).

Cass. com, 6 October 2009, LawLex202300005592JBJ (LJ), confirming on this point CA Pau, 12 June 2008, LawLex202300005463JBJ (LJ).

Bankruptcy Law

922. Sale by private contract

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922. Sale by private contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise