Bankruptcy Law

Article L. 643-11, I(1) of the Commercial Code emphasizes that the court ruling closing a court-supervised liquidation on grounds of insufficient assets does not give creditors the right to exercise their individual claims against the debtor.
The principle of a definitive halt to individual proceedings applies only to prior claims, and not to creditors whose claims arose regularly after the openin …

Prohibition of individual lawsuits

Article L. 643-11, I(1) of the Commercial Code emphasizes that the court ruling closing a court-supervised liquidation on grounds of insufficient assets does not give creditors the right to exercise their individual claims against the debtor.

The principle of a definitive halt to individual proceedings applies only to prior claims, and not to creditors whose claims arose regularly after the opening of the insolvency procedure . Thus, a guarantor who has subrogated the rights of the original creditor may request the seizure of wages and the payment of an advance to his debtor whose court-supervised liquidation has just been closed for insufficiency of assets, if his claim arose after the court-supervised liquidation procedure, since Article L. 643-11 of the Commercial Code is not applicable in this case .

Nor does the principle of a definitive stay of individual proceedings apply in the event of closure of the procedure for extinction of liabilities , so that a court cannot dismiss a creditor's action without providing a reason for the closure of the procedure . A court ruling on the closure of proceedings for the extinction of liabilities does not have the force of res judicata as regards the extinction of claims, so that it does not render inadmissible a claim for payment by a creditor who claims not to have been paid, on condition that he can prove this . A creditor whose claim is unenforceable against his debtor's court-supervised liquidation procedure because it arose from an act performed in disregard of the rule of divestiture, and who cannot obtain payment during the procedure, recovers his right to sue after the proceedings have been closed for extinction of liabilities .

If the creditor does not recover his individual right of action against the debtor who is the subject of a court-supervised liquidation for insufficient assets, he retains this right against the guarantor . He may also take action against the joint and several debtor, who may not avail himself of the benefit of the prohibition on individual creditor actions against the debtor, after the closure of his court-supervised liquidation for insufficiency of assets, since this is a purely personal exception for the latter . For example, a spouse who is jointly and severally liable with a borrower who has been subject to a court-supervised liquidation for insufficient assets cannot invoke the prohibition on resuming proceedings provided for in Article L. 643-11 of the Commercial Code, which applies only to his or her spouse, since he or she is the debtor of a separate obligation .

Furthermore, deprivation of the right to act against the debtor does not entail extinction of the claim. As a result, the release of mortgages taken out prior to the opening of the insolvency procedure is not required , and the health insurer may take advantage of the absence of full payment of prior contributions to exclude this period from the calculation of the amount of benefits paid .

Lastly, the provisions of Article L. 643-11 of the Commercial Code do not preclude the enforcement, subsequent to the court ruling closing the judicial liquidation for insufficiency of assets, of a summons for the purpose of seizure and attachment of the vehicle issued on the basis of a decision of the bankruptcy judge authorizing, following a petition for revendication, the restitution of an asset . Nor do they preclude the other party from seeking rescission of the contract of sale on grounds of non-performance, since an action for rescission of a contract on grounds other than non-payment of a sum of money is not subject to the provisions of Article L. 643-11 of the Commercial Code .

Cass. com., 30 October 2000, LawLex202300006684JBJ (LJ).

Cass. com., 24 March 2004, LawLex202300006937JBJ (LJ).

Cass. soc., 8 June 1995, LawLex202300006695JBJ (LJ); Cass. 2e civ., 17 January 2007, LawLex202300006696JBJ(LJ); 15 February 2018, LawLex202300006698JBJ (LJ).

Cass. com., 4 January 2005, LawLex202300006685JBJ (LJ).

Cass. 1re civ., 14 November 2001, LawLex202300006682JBJ (LJ).

Cass. com., 4 October 2005, LawLex202200008452JBJ (LJ).

Cass. com., 6 March 2019, LawLex202300006672JBJ (LJ).

Cass. com., 16 November 2010, LawLex202100001548JBJ (LJ).

Cass. com., 17 May 2017, LawLex202300006882JBJ (LJ) ; LawLex202100002338JBJ (LJ).

Cass. com., 8 June 1993, LawLex202100001549JBJ (LJ).

Cass. com., 24 March 2004, LawLex202200008597JBJ (LJ).

Cass. com., 2 February 2022, LawLex202200001047JBJ (LJ).

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Bankruptcy Law

944. Prohibition of individual lawsuits

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Les notions juridiques connexes

944. Prohibition of individual lawsuits

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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