Bankruptcy Law

The current liabilities taken into consideration to determine whether the debtor is in a state of cessation of payments are first and foremost current liabilities : they do not include claims yet to fall due or those declared on a provisional basis . To determine whether the debtor is in a state of cessation of payments, the court must distinguish between liabilities due on the date of the judgmen …

Liabilities due

The current liabilities taken into consideration to determine whether the debtor is in a state of cessation of payments are first and foremost current liabilities : they do not include claims yet to fall due or those declared on a provisional basis . To determine whether the debtor is in a state of cessation of payments, the court must distinguish between liabilities due on the date of the judgment opening the court-supervised liquidation and liabilities made due as a result of the court-supervised liquidation . The opening of a court-supervised liquidation procedure that does not allow the debtor to continue as a going concern must be based on the existence of liabilities due and payable on the date of the ruling . Furthermore, in the absence of proof to the contrary, debts entered in the accounts are due and payable .

Current liabilities are then reduced to current liabilities. The creditor is free to extend credit to the debtor  by granting a moratorium  or legal rescheduling, with the result that the debts concerned cannot be considered as due and included in the debtor's current liabilities . For the same reasons, the balance of a shareholder's current account should not be taken into account in calculating the debt due when advances are blocked or when their repayment is not requested . However, the court does not have to verify whether the payment of liabilities due has actually been requested when the debtor does not demonstrate that he has a credit reserve or a moratorium from his creditors that would enable him to meet his liabilities due .

In addition, the liability must be certain  and not disputed : a claim whose merits are disputed constitutes a disputed claim that cannot be taken into account in determining the liabilities due. This is the case when the determination of the claim is subject to proceedings pending before the trial courts  or when the judgment establishing the existence of the claim is subject to appeal , even if it is provisionally enforced , when the debtor has not been duly notified of the enforcement order  or when the debtor has lodged a claim accompanied by a request for deferment of payment, which suspends the tax liability . However, in order to deprive a claim of its due and payable nature, the appeals lodged must have suspensive effect. This is not the case for appeals pending before an administrative court of appeal  or before the Court of Cassation . In addition, the rejection of the claim gives rise to the issue of a recovery notice which grants the public accountant an enforceable title and justifies the inclusion of the amount in the liabilities due . Similarly, an order, by a summary ordinance, for the payment of an advance and a provisional occupancy indemnity, which is confirmed on appeal, must, in the absence of proceedings on the merits concerning it, be included in the debtor's current liabilities .

Finally, current liabilities may consist of a single claim and not necessarily several unpaid claims against separate creditors, where the debtor's available assets are insufficient to pay the claim .

Cass. com. 3 April 2001, LawLex202100004086JBJ (RJ), holding that rent payable each month in advance also constitutes a current liability.

CA Metz, 3 March 2022, LawLex202200006452JBJ (RJ).

Cass. com. 18 May 2016, LawLex202100002783JBJ (LJ), holding that the absence of any precise and updated statement of a claim, the alleged amount of which does not correspond to the cumulative amount of the constraints produced, excludes it from being taken into account in the debtor's liabilities due. Comp. Cass. com. 7 March 2006, LawLex202100004116JBJ (LJ), holding that the creditor's claim for an amount halved compared to that previously declared has no impact on the certain, liquid and payable nature of his claim.

Cass. com, 5 May 2015, LawLex202100004124JBJ (RJ); CA Metz, 3 March 2022, aforementioned. A contrario, Cass. com. 29 April 2014, LawLex202100004120JBJ (LJ), holding that an uncontested claim constitutes a due and payable claim, whether or not it is recorded in a writ of execution; 3 May 2011, LawLex202100004129JBJ (RJ), holding that unpaid contributions that have been the subject of constraints that have not been contested after they have been served or confirmed by the social security court must be included in the debtor's due and payable liabilities.

Cass. com., 22 February 1994, LawLex202100004123JBJ (LJ) ; 9 February 2010, LawLex202100005971JBJ (RJ) ; 11 April 2018, LawLex202100004133JBJ (LJ) ; CA Rennes, 22 February 2022, LawLex202200006454JBJ (LJ).

Cass. com, 16 March 2010, LawLex202100001905JBJ (LJ). - Comp. when the judgment has become final, Cass. com. 28 June 2017, LawLex202100001898JBJ (RJ).

Cass. com., 2 March 2022, LawLex202200006197JBJ (LJ).

Cass. com., 31 January 2017, LawLex202100004122JBJ (LJ).

Cass. com., 1 December 2009, LawLex202100004132JBJ (RJ) ; 15 May 2019, LawLex202100004337JBJ (LJ).

Cass. com., 7 March 2006, LawLex202100004131JBJ (LJ).

Cass. com., 13 April 2010, LawLex202100003656JBJ (RJ).

Cass. com., 11 April 2018, LawLex202100001904JBJ (LJ).

Cass. com., 16 March 2010, LawLex202100004150JBJ (LJ) ; 8 July 2003, LawLex202100002059JBJ(LJ) ; 26 May 1999, LawLex202100004137JBJ (LJ).

Cass. com., 16 January 2019, LawLex202100004286JBJ (RJ).

Cass. com., 8 March 1994, LawLex202200004874JBJ (RJ).

Cass. com., 10 January 2012, LawLex202100004441JBJ (LJ).

Cass. com., 12 July 2011, LawLex202100004117JBJ (LJ).

Cass. com., 28 April 1998, LawLex202100004134JBJ (LJ).

Cass. com. 18 March 2008, LawLex202100005913JBJ (LJ), moratorium obtained for company debts.

Cass. com., 20 April 2017, LawLex202100004127JBJ (RJ) ; 16 December 2008, LawLex202100004136JBJ (LJ) ; CA Toulouse, 6 April 2022, LawLex202200006457JBJ (LJ).

Cass. com. 10 January 2012, LawLex202100004119JBJ (RJ). Comp. Cass. com. 24 March 2009, LawLex202100001854JBJ (RJ), holding that a company's financial debts to subsidiaries form part of its current liabilities, even if their repayment has not been requested, since the economic relations between companies within a group cannot lead them to waive their right to recover their debts.

Cass. com. 6 July 2010, LawLex202100004152JBJ (LJ); 15 February 2011, LawLex202100004153JBJ (LJ). See also, Cass. com. 13 November 2001, LawLex202100004151JBJ (RJ), proof not provided of the existence of a response from the creditor to the debtor's request for a moratorium.

Bankruptcy Law

633. Liabilities due

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633. Liabilities due

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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