Bankruptcy Law

Until the Law of 14 February 2022 , Article L. 641-9 of the Commercial Code stipulated that a court-supervised liquidation order divested the debtor of the administration and disposal of “his assets”. The very broad wording of the text implied, when the debtor was a natural person, divestment of all the assets making up his or her patrimony, whether or not they were assigned to the business activi …

Assets subject to divestiture

Until the Law of 14 February 2022 , Article L. 641-9 of the Commercial Code stipulated that a court-supervised liquidation order divested the debtor of the administration and disposal of “his assets”. The very broad wording of the text implied, when the debtor was a natural person, divestment of all the assets making up his or her patrimony, whether or not they were assigned to the business activity. The same applied to joint property when the debtor was married under the community property regime. In its wording resulting from the Law of 14 February 2022, the text now only divests the debtor of “the assets making up the patrimony involved in the professional activity, even those he has acquired in any capacity whatsoever as long as the court-supervised liquidation is not closed”.

The inclusion of joint property within the scope of divestiture was justified by the fact that the rights of each spouse to the community assets could not be individualized during the procedure . The debtor under court-supervised liquidation could not be the subject of a summons to pay for the purpose of seizing the undivided property . The creditor of the spouse in good standing could only take legal action against the property of the divested debtor, included in the marital community, if the liquidator had not undertaken the liquidation of the encumbered property within three months of the opening of the court-supervised liquidation . Today, these solutions only concern property that has been allocated to the debtor's business.

The debtor is also deprived of part of his income. However, the liquidator may not, on the sole basis of the judgment opening or pronouncing the court-supervised liquidation , or the bankruptcy judge's visa on the statement of claims , proceed with the seizure of the dispossessed debtor's wages, since these acts do not constitute an enforcement order recording a liquid and due claim . Furthermore, the wages of a husband and wife married under community law constitute joint property subject to seizure for the benefit of the creditors of the husband and wife placed under insolvency procedure, which cannot be seized for the duration of the procedure for the benefit of a creditor of the husband and wife in good standing . However, a fraction of the debtor's income remains exempt from seizure : it is excluded from divestiture. Enacted in the sole interest of the debtor, the unseizability of wages or similar benefits can only be invoked by the debtor . Alimony claims fall within the scope of unseizable income. Nevertheless, the liquidator may not be refused the allocation, for the purposes of the insolvency procedure, of indemnities allocated to the debtor following an accident, without the court checking whether they are, in whole or in part, of a maintenance nature .

Law 2022-172 of 14 February 2022 in favor of independent professional activity, OJ 15 February 2022, effective 15 May 2022.

Cass. com., 22 May 2012, LawLex202100001080JBJ (LJ).

Cass. com., 5 February 2002, LawLex202100002140JBJ (LJ).

Cass. com., 4 April 2006, LawLex202100001099JBJ (LJ).

Cass. ass. plén., 23 December 1994, LawLex202100002138JBJ (LJ).

Cass. 2e civ., 7 January 2016, LawLex202100002112JBJ (LJ).

Cass. com., 2 May 2001, LawLex202100002115JBJ (LJ).

Cass. com., 16 November 2010, LawLex202100002137JBJ (LJ).

Cass. com., 11 July 1995, LawLex202100002108JBJ (LJ).

Bankruptcy Law

685. Assets subject to divestiture

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Les notions juridiques connexes

685. Assets subject to divestiture

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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au contenu exclusif Livv – juristes d’entreprise