Bankruptcy Law

The individual sale of the debtor's movable assets may include his business, subject to the procedural terms and conditions set out in Article L. 642-19. 
Since it is generally accompanied by a transfer of the right to the lease, the transfer of the business is carried out under the conditions laid down in the contract at the date of the opening judgment. Consequently, the lessor is entitled to re …

Transfer of the debtor's business

The individual sale of the debtor's movable assets may include his business, subject to the procedural terms and conditions set out in Article L. 642-19. 

Since it is generally accompanied by a transfer of the right to the lease, the transfer of the business is carried out under the conditions laid down in the contract at the date of the opening judgment. Consequently, the lessor is entitled to rely on the clause providing for his approval , and the bankruptcy judge may not, without committing an abuse of power, authorize the transferee to take immediate possession of the business, even on a precarious basis, in violation of the clauses of the lease requiring the owner's approval or, failing this, the court's agreement .

The lessor may also avail himself, where applicable, of the clause stipulating a right of preference or pre-emption in his favor . The exercise of the lessor's right of pre-emption more than three months after the bankruptcy judge's ordinance validating a third party's offer is not considered late, since the lease contract concluded with the debtor makes it subject to the irrevocable nature of this ordinance . Consequently, the sale by mutual agreement of the business of a debtor in a court-supervised liquidation is not perfect when the ordinance of the bankruptcy judge authorizing it has not become irrevocable due to opposition by the lessor, who intends to exercise his right of pre-emption . Conversely, opposition to the sale, based on the lessor's right of pre-emption, is inadmissible where it is lodged after the bankruptcy judge's order has become res judicata, since the sale becomes perfect as of that date . Lastly, the bankruptcy judge cannot authorize the sale of the business to a third party after the beneficiary of the promise to sell signed by the debtor before the opening judgment has been exercised .

In the event of two competing bids, one of which is a higher bid submitted by way of opposition, the court cannot authorize the sale of the business to the higher bidder on the sole grounds that his bid is better than the other, without ordering the sale of the business by public auction . The creditor holding a pledge on the business is also entitled to oppose the sale by higher bid when the higher bid concerns the licence IV, which is the only remaining asset of the business after it burnt down . 

The sale becomes perfected as soon as the order authorizing it is issued, subject to the suspensive condition that the decision acquires the force of res judicata, even if the sale is only completed by acts subsequent to the bankruptcy judge's decision . Potential purchasers of a business may therefore only oppose the signing of the deed of sale and the payment of the price, and retract their offer, if they can justify a legitimate reason and an extraneous cause exclusive of any fault on their part .  Legitimate reasons include the impossibility of acquiring the trade name, which is an essential element of the goodwill being transferred , or the provision of information on the existence of a dispute concerning the right to lease to a third party with no powers to represent the transferee . Non-compliance with the authorization procedure may also be invoked by the transferee, who may rely on the absolute nullity of a business transfer decided by the liquidator prior to the authorization of the bankruptcy judge, without having to justify any grievance, notwithstanding the subsequent adoption of an authorization order . On the other hand, the transferee cannot refuse to regularize the sale of two businesses by withdrawing his offer after the bankruptcy judge's ordinance, simply because there are shortfalls, even if the liquidator has not proposed a reduction in the price . Nor does the loss of a commercial lease enabling the business to be operated constitute a legitimate reason for the transferee to withdraw his offer to purchase when he has become the owner of the premises through an interposed legal entity . 

An offeror who, without a legitimate reason, refuses to regularize the deed of sale of the business of a debtor in a court-supervised liquidation commits a fault for which he is liable . Furthermore, refusal to regularize the transfer leads to the cancellation, and not the lapse, of the business transfer ordered by an initial ordinance of the bankruptcy judge . 

When the transfer of the business becomes complete, it entails the transfer of the obligations attached to its operation to the transferee, on the date on which the order authorizing it acquires the force of res judicata. In particular, a transferee who takes immediate possession of the business is required to perform the obligations imposed on him by the sublease agreement which is an accessory , to pay a retirement indemnity to an employee  or to pay rent from the date of the ordinance of the bankruptcy judge . On the other hand, the sale of a debtor's business under a court-supervised liquidation procedure does not entail the compulsory assignment of contracts entered into by the debtor with a third party , in particular contracts for the supply of goods or services relating to the assets sold . Similarly, the sale of a real estate agent's business under a court-supervised liquidation does not entail the transfer of the mandates entrusted to this professional .

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Bankruptcy Law

923. Transfer of the debtor's business

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923. Transfer of the debtor's business

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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