Bankruptcy Law

The burden of proving that the debtor is in a state of cessation of payments rests with the person requesting the opening of a court-supervised liquidation procedure . The mere fact that the debtor has applied to open an insolvency procedure does not relieve the court of the obligation to establish that the debtor is in a state of cessation of payments . Where the application is made by a creditor …

Applicant at the opening

The burden of proving that the debtor is in a state of cessation of payments rests with the person requesting the opening of a court-supervised liquidation procedure . The mere fact that the debtor has applied to open an insolvency procedure does not relieve the court of the obligation to establish that the debtor is in a state of cessation of payments . Where the application is made by a creditor, it is not incumbent on the debtor to prove that it is not in a state of cessation of payments . The same applies when the procedure is opened ex officio after a previous judgment has been set aside .

A creditor who applies to open an insolvency procedure, and who bears the burden of proving that payments have ceased, does not provide such proof simply by producing seizure documents and statements of default, even though the debtor's business is showing a positive result . In the absence of such proof by the creditor, the rejection of his application to open a court-supervised liquidation procedure is justified . Where, on the other hand, the creditor has provided evidence and the debtor disputes that it has ceased payments, the burden of proof is reversed. Accordingly, a debtor who claims that certain debts entered in the accounts are not payable must justify this .

Cass. com., 24 March 2009, LawLex202100004250JBJ (RJ) ; 27 April 1993, LawLex202100004229JBJ (RJ) ; 2 April 1996, LawLex202100004259JBJ (RJ) ; 22 January 2008, LawLex202100004260JBJ (RJ) ; 23 November 1999, LawLex202100002069JBJ (RJ) ; 10 May 2005, LawLex202100004199JBJ (RJ) ; 5 May 2015, LawLex202100004124JBJ (RJ) ; 30 June 2009, LawLex202100004253JBJ (LJ).

Cass. com., 6 March 2001, LawLex202100004189JBJ (RJ).

Cass. com., 19 November 2013, LawLex202100004248JBJ (LJ).

Cass. com., 28 January 2004, LawLex202100004225JBJ (RJ).

Cass. com., 23 January 2001, LawLex202100004262JBJ (RJ).

See by analogy, Cass. com., 16 June 2004, LawLex202100004263JBJ (RJ).

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

Bankruptcy Law

635. Applicant at the opening

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

635. Applicant at the opening

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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