Bankruptcy Law

Pursuant to Article L. 642-7 of the Commercial Code, the court determines the leasing, rental or supply contracts for goods or services necessary to maintain the business, in the light of the observations of the debtor's co-contractors made to the liquidator or receiver, where one has been appointed. The judgment adopting the plan entails the assignment of these contracts, even when the assignment …

Characteristics of transferred contracts

Pursuant to Article L. 642-7 of the Commercial Code, the court determines the leasing, rental or supply contracts for goods or services necessary to maintain the business, in the light of the observations of the debtor's co-contractors made to the liquidator or receiver, where one has been appointed. The judgment adopting the plan entails the assignment of these contracts, even when the assignment is preceded by the management lease provided for in Article L. 642-13. In the event of disagreement between the parties as to the value of the asset covered by the leasing contract, the court sets this value, if necessary after an expert appraisal, in the assignment plan or, failing this, at the request of one or other of the parties .

The aim of the plan is to maintain the business sold to the buyer by transferring the current contracts  entered into by the debtor company . Where a contract is no longer in force, the transferee may, with the agreement of the other party, waive termination and take over the contract . It must be possible to transfer any contract necessary to maintain the business. This is the case for a contract between a doctor and a clinic, sold to a third party as part of a disposal plan, where the judgment adopting the plan has prescribed “the maintenance, as far as possible, of contracts with practitioners” . On the other hand, the court may not require the purchaser to assign a leasing contract, the performance of which would aggravate the commitments entered into by the purchaser during the preparation of its offer, which did not mention the assumption of the contract .

Can the debtor's co-contractor invoke the intuitu personae nature of the contract to avoid taking over the lease? Jurisprudence in this area has shown considerable fluctuation. While courts agree that the transfer of the franchise agreement to the franchisor is enforceable against the franchisor in the context of an assignment plan, even in the presence of an intuitus personae clause or a priority right , the solutions are more uncertain when the procedure is opened against the franchisor. Initially, the courts ruled that the franchise agreement could be assigned to the transferee , but then reversed this position, holding that the franchise agreement must be considered an intuitu personae contract, which cannot be assigned to the franchisor's transferee in the absence of the franchisee's agreement . However, to counter this solution, it is now common practice to insert an intuitus personae clause in the franchise agreement in favor of the franchisor alone, allowing the transfer of contracts to the franchisor's transferee in the event of a voluntary or judicial transfer of the contracts . These latter solutions bring the franchise regime into line with that of the concession contract, for which courts have long held that even when concluded intuitu personae, it may be included in a transfer plan if it appears necessary to maintain the business .

Lastly, since no provision relating to a transfer plan gives the court the power to require the owner to grant a rural lease on his land to the transferee , a rural lease cannot be transferred when the lessor has proposed the allocation to a transferee of his own choosing . The fact that there are several rural leases to be assigned does not prevent priority allocation to the lessees proposed by the lessors, provided that all the leasehold rights constitute the essential part of the farm that is the subject of the assignment . The court's derogatory power to allocate the lease to a lessee proposed by the lessor or, failing that, to any buyer whose offer has been accepted in accordance with the conditions laid down by the provisions of the Commercial Code relating to the transfer plan, is reserved for the case of the transfer of a business essentially made up of the right to a rural lease .

Cass. com. 9 February 2016, LawLex202200001183JBJ (RJ); 13 April 1999, LawLex202100001170JBJ (RJ), holding that the loan contract for funds fully remitted to the borrower prior to the opening of its insolvency procedure, which does not constitute a current contract, cannot be assigned under contracts necessary to maintain the business.

CA Douai, 8 March 1990, LawLex202300004446JBJ (RJ).

Cass. com., 14 March 2000, LawLex202300004415JBJ (RJ).

Cass. com., 30 November 1993, LawLex202300004422JBJ (RJ).

Cass. com., 9 June 1998, LawLex202300004494JBJ (RJ).

Cass. com., 28 April 1998, LawLex202300004464JBJ (RJ).

Cass. com. 10 July 2001, LawLex202300002723JBJ (RJ), considering that the surety bond concluded between the creditor and the debtor's guarantor cannot be assigned within the framework of an assignment plan, since it is not a contract of the debtor company.

CA Orléans, 20 February 2014, LawLex202300004927JBJ (RJ).

Cass. com., 27 October 1998, LawLex202300004412JBJ (RJ).

Cass. com., 15 December 2009, LawLex202100001161JBJ (RJ).

CA Paris, 23 January 2020, LawLex202000000104JBJ (RJ).

CA Versailles, 23 June 1988, LawLex200200005726JBJ (RJ).

CA Paris, 15 December 1992, LawLex200200005961JBJ (RJ) ; CA Versailles, 28 March 1996, LawLex200200005559JBJ(RJ) ; CA Orléans, 14 September 2000, LawLex200200005319JBJ (LJ).

CA Lyon, 9 December 2014, LawLex201400001497JBJ (RJ); CA Limoges, 28 January 2019, LawLex201900000156JBJ (LJ).

Bankruptcy Law

885. Characteristics of transferred contracts

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885. Characteristics of transferred contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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