Bankruptcy Law

The Court of Cassation considers that in order to be “available” within the meaning of Article L. 640-1 of the Commercial Code, the debtor's assets must be mobilizable or realizable in the short term. In assessing whether a company is in a state of cessation of payments, account may therefore be taken of the liquid assets available to it under a cash management agreement with its subsidiaries, pro …

Available assets

The Court of Cassation considers that in order to be “available” within the meaning of Article L. 640-1 of the Commercial Code, the debtor's assets must be mobilizable or realizable in the short term. In assessing whether a company is in a state of cessation of payments, account may therefore be taken of the liquid assets available to it under a cash management agreement with its subsidiaries, provided that these assets are immediately available .

- cash reserves  or the cash advance granted to the debtor by a company in the same group, the repayment of which has not been requested ;

- a credit reserve  or an overdraft facility ;

- the provision which exists for the benefit of the bearer of a bank cheque during the limitation period of his action for payment against the drawee, even if the cheque has not been cashed ;

However, if they cannot be realized or mobilized in the short term, they do not constitute available assets:

- debts to be recovered , unless they are to be recovered from a company in the group to which the debtor in an insolvency procedure belongs and which is in a position to settle their intra-group debts ;

- shareholdings in or claims from various subsidiaries ;

- cash advances made by the debtor's manager or parent company with the sole aim of delaying the date of cessation of payments to an abnormal extent ;

- quotes, even for large sums , or even a firm order ;

- “customers claims” , from the Trésor Public  or intra-group claims, where the debtor's subsidiaries are unable to pay them ;

- funds placed in escrow for the benefit of mortgage creditors with a notary, pending the release of mortgages ;

- the first demand guarantee granted by a third party, or its agreement to defer repayment in the event that it is called .

Lastly, unpaid share capital  is not an available asset but a debt owed by the company to its shareholders.

CA Toulouse, 6 April 2022, LawLex202200006457JBJ (LJ).

Cass. com., 20 September 2005, LawLex202100004238JBJ (RJ).

Cass. com., 22 January 2002, LawLex202100004217JBJ (RJ).

CA Basse-Terre, 28 March 2022, LawLex202200006451JBJ (LJ).

Cass. com., 18 March 2008, LawLex202100005913JBJ (LJ); 16 December 2008, LawLex202100004214JBJ (RJ); CA Metz, 3 March 2022, LawLex202200006452JBJ (RJ).

Cass. com., 20 June 1995, LawLex202100004209JBJ (RJ).

Cass. com., 17 May 2011, LawLex202100005968JBJ (LJ); 1 July 2020, LawLex202100004156JBJ (RJ) and LawLex202200004285JBJ (RJ).

Cass. com., 18 June 2013, LawLex202100004220JBJ (LJ); CA Metz, 3 March 2022, cited above.

Cass. com., 26 March 2013, LawLex202100004221JBJ.

Cass. com., 2 November 2016, LawLex202100004433JBJ (RJ).

Cass. com. 7 February 2012, aforementioned; CA Bastia 8 June 2022, LawLex202200006453JBJ (RJ), holding that the amount of a debt to be recovered from the Treasury cannot be included in the debtor's available assets when there is no certainty as to the existence of a balance in its favor and the possibility of its collection under conditions compatible with the concept of available assets.

Cass. com. 16 November 2010, LawLex202100005967JBJ (RJ). See also. Cass. com, 12 May 2009, LawLex202100004118JBJ (LJ), considering that a current account advance, which is not blocked or for which repayment has not been requested, constitutes an available asset and not an additional current liability. Contra, CA Rennes, 22 February 2022, LawLex202200006454JBJ (LJ).

Cass. com., 24 March 2009, LawLex202100001854JBJ (RJ).

Cass. com., 5 December 2018, LawLex202100005965JBJ (RJ).

Cass. com., 26 June 1990, LawLex202100004247JBJ (RJ).

Cass. com., 23 April 2013, LawLex202100004208JBJ (RJ).

Cass. com. 8 January 2002, LawLex202100005963JBJ (LJ). See also. Cass. com, 29 November 2016, LawLex202100005970JBJ (LJ), considering that a sum contributed by a partner, subject to the reversal of the judgment opening the insolvency procedure, constitutes a credit reserve likely to be included in the available assets of the debtor company; 19 February 2013, LawLex202100004245JBJ (LJ), holding that financial assistance granted by a bank to a company that has assigned claims to it by way of a bordereau Dailly constitutes an available asset as long as it is based on the resources of the company's economic activity, regardless of the intention of its managers to divert this financing and sacrifice it in order to reorganize the group.

Cass. com., 7 January 2003, LawLex202100004241JBJ (LJ).

Cass. com. 18 December 2007, LawLex202100004194JBJ (RJ); 5 February 2013, LawLex202100004196JBJ (RJ). See also, for the photocopy of a bank cheque, Cass. com. 13 May 2014, LawLex202100004206JBJ (RJ).

See, a contrario, Cass. com. 20 March 2019, LawLex202100004193JBJ (LJ); 22 January 2002, LawLex202100004217JBJ (RJ).

Cass. com., 15 February 2011, LawLex202100004153JBJ (LJ).

Cass. com. 28 November 1989, LawLex202100004210JBJ (RJ); 7 February 2012, LawLex202100001906JBJ (LJ). The solution applies in all its rigour, even if the tenant has made an offer to buy the property for a price in line with the estimates, accepted by the landlady's guardian, and reiterated his intention to acquire the property at the hearing (Cass. com, 17 June 2020, LawLex202100004216JBJ [LJ]) or if the debtor has accepted the buy-back offer made by the municipality with a right of pre-emption, at the price corresponding to the value retained by the expropriation court (Cass. com., 27 February 2007, LawLex202100004215JBJ [RJ]).

Bankruptcy Law

632. Available assets

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632. Available assets

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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