Bankruptcy Law

The Court of Cassation has long held the view that anyone who has received a payment in violation of the principle of equality of unsecured creditors is obliged to return the sum paid. An unsecured creditor cannot keep sums paid to him in violation of the rule of equality of creditors, even if the payment was made with full knowledge of the facts  and if his claim has been definitively admitted to …

Breach of equality between creditors

The Court of Cassation has long held the view that anyone who has received a payment in violation of the principle of equality of unsecured creditors is obliged to return the sum paid. An unsecured creditor cannot keep sums paid to him in violation of the rule of equality of creditors, even if the payment was made with full knowledge of the facts  and if his claim has been definitively admitted to the liabilities of the insolvency procedure . A creditor paid on a privileged basis in respect of a provisional registration of mortgage, subsequently rendered null and void by the failure to complete the formalities for definitive publication, may not retain the sums received in violation of the rule of equality of unsecured creditors .

The rule of equality of creditors did not apply to privileged creditors. The liquidator could not, therefore, summon a mortgagee for restitution of a payment made in error, since the accipiens had only received what was owed to him by the debtor . Similarly, the holder of a movable priority claim, who was mistakenly reimbursed by the liquidator before a mortgagee, was not liable for the repayment of undue payments, since he had only received what was owed to him by the debtor .

The Ordinance of 12 March 2014  extended the principle of equality of creditors to all creditors, whether privileged or not. Article L. 643-7-1 now stipulates that a creditor who has received a payment in violation of the rule of equality of unsecured creditors, or as a result of an error in the order of privileged claims, must return the sums paid. The sums recovered by the liquidator in respect of restitution by the creditor of the amount of payments made by the debtor in breach of Article L. 622-20 of the Commercial Code, made applicable to court-supervised liquidation by Article L. 641-3 of the Commercial Code, the nullity of which is intended to re-establish equality between the creditors subject to collective discipline, enter the debtor's assets and are intended to be distributed among all the creditors, so that any compensation is excluded between a restitution debt and a claim admitted to the debtor's liabilities .

Cass. com., 17 November 1992, LawLex202300007236JBJ (LJ).

Cass. com., 11 February 2004, LawLex202300007237JBJ (LJ).

Cass. com., 12 May 2009, LawLex202300007239JBJ (LJ).

Cass. com., 30 October 2000, LawLex202300007238JBJ (LJ).

Cass. com., 26 November 1985, LawLex202300007483JBJ (LJ).

Ordinance 2014-326 of 12 March 2014 concerning the reform of the prevention of business difficulties and insolvency proceedings.

Cass. com., 16 June 2021, LawLex202100005844JBJ (LJ).

Bankruptcy Law

936. Breach of equality between creditors

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936. Breach of equality between creditors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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