Bankruptcy Law

Under Article L. 641-9, I(1) of the Commercial Code, the debtor's rights and actions concerning his assets are exercised by the liquidator throughout the court-supervised liquidation. This divestiture concerns all rights and actions relating to the debtor's assets, and in particular actions for the recovery of a claim.  The disposal of assets by the debtor in disregard of the rule of divestiture,  …

Rights and actions relating to debtor's assets

Under Article L. 641-9, I(1) of the Commercial Code, the debtor's rights and actions concerning his assets are exercised by the liquidator throughout the court-supervised liquidation. This divestiture concerns all rights and actions relating to the debtor's assets, and in particular actions for the recovery of a claim.  The disposal of assets by the debtor in disregard of the rule of divestiture, set out in Article L. 641-9 of the Commercial Code to preserve the creditors’ security interest during the proceedings, are rendered unenforceable against the insolvency proceedings, and the liquidator may invoke such unenforceability, including against a payment service provider .

The same applies to an action for compensation against the person who drew up the liquidation statement of a professional partnership of judicial commissioners, for failure to perform his duties , against the seller of a building and a business, for concealment of the administrative obligation to carry out work , or against the debtor's defaulting co-contractor , or an action for payment of the balance of a partner's current account . Similarly, the partners of a divested company may not, in place of the liquidator, bring an action against other partners to fix the contribution to the company's losses , or compromise on the subject of an insurance indemnity . Lastly, the liquidator alone has the power to bring a civil action to defend the debtor's financial interests , so that neither the statutory representative of the legal entity placed in court-supervised liquidation, nor his legal representative, appointed in place of the corporate officers, are entitled to bring a civil action to seek compensation for the loss suffered by the debtor . Consequently, an appeal lodged without the assistance of the liquidator by a civil party in court-supervised liquidation, when only civil interests are at stake, is inadmissible .

The divestiture of the debtor under court-supervised liquidation extends to the exercise of his property rights in the joint ownership of which he is a member . The liquidator alone is entitled to request partition or to defend an action for partition of the indivision in which the divested debtor finds himself . Since no one is obliged to remain in joint ownership, the liquidator may request partition without having to prove a claim . The request for recognition of a deferred wage claim against the estate, which is of a patrimonial nature, also falls within the liquidator's powers , as does the signing of the deed of partition . Consequently, the notary cannot invoke professional secrecy to refuse to provide him with information on the debtor's rights in his father's estate . The liquidator is not obliged to summon the debtor in a procedure concerning the determination of the nature of the spouses' matrimonial property regime, since this procedure has nothing to do with their family and marital relations, but is purely patrimonial in nature .

Representation of the debtor in court-supervised liquidation by the liquidator is a rule of public policy, which means that all procedural acts must be notified directly to the liquidator, rather than to the debtor. This is the case for payment orders , tax rectification procedures , landlord's notice to quit  and court judgments . Only the liquidator can take advantage of a judgment's lack of valid service .

As the debtor company is not entitled to be served with a judgment concerning its assets, it cannot, a fortiori, lodge an appeal against such a judgment on its own . This is a public policy objection that must be raised ex officio by the court , but which may nevertheless be remedied by the voluntary intervention of the liquidator within the time-limit for appeal .

Proceedings in progress at the date of the opening judgment must also be continued by the liquidator if they are of a proprietary nature . Consequently, a judgment rendered after the proceedings have been interrupted by the effect of a judgment declaring the debtor's court-supervised liquidation, without the liquidator having been called to the proceedings, is deemed to be null and void .

Cass. com., 2 July 2025, LawLex202500005612JBJ.

Cass. 1re civ., 6 September 2017, LawLex202100002150JBJ (LJ).

Cass. com., 21 January 2003, LawLex202100002120JBJ (LJ).

Cass. com., 1 October 2013, LawLex202100002116JBJ (LJ).

Cass. 1re civ., 29 June 2011, LawLex202100002122JBJ (LJ).

Cass. com., 11 June 2014, LawLex202100002125JBJ (LJ).

Cass. com., 13 January 2015, LawLex202100002123JBJ (LJ).

Cass. com., 23 October 2019, LawLex202100001093JBJ (LJ).

Cass. com., 12 October 2004, LawLex202100002688JBJ (LJ).

Cass. com. 1 October 2002, LawLex202100001098JBJ (LJ), ruling that a summons to pay issued to a debtor who has been divested is null and void.

Cass. com., 21 February 2012, LawLex202100002127JBJ (LJ).

Cass. com., 27 September 2016, LawLex202100002132JBJ (LJ).

Cass. com., 18 September 2012, LawLex202100002129JBJ (LJ).

Cass. com., 28 June 1994, LawLex202100001087JBJ (LJ).

Cass. com., 22 January 2002, LawLex202100001077JBJ (LJ).

Cass. com, 10 December 2003, LawLex202100001091JBJ; 21 February 2012, LawLex202100002170JBJ (LJ), considering that the divested debtor cannot appeal, in place of the liquidator, against the judgment authorizing the liquidator to resume proceedings and the sale by public auction of his assets; 13 November 2013, LawLex202100001092JBJ (LJ), holding that a debtor alone cannot contest the allocation of the auction price of a property to a creditor, nor can he appeal against decisions relating to this allocation ; 8 March 2017, LawLex202100002690JBJ (LJ), ruling out the possibility of a divested debtor appealing against a decision granting a real estate seizure, with a view to obtaining its annulment, where such a remedy is likely to affect his assets. See also CA Pau, 29 November 2011, LawLex202100005590JBJ (LJ), declaring inadmissible the appeal of the debtor alone against the judgment rejecting his request for condemnation of a creditor for granting abusive credit.

Cass. com., 18 January 2023, LawLex202300001174JBJ (LJ).

Cass. com. 14 May 2008, LawLex202100002163JBJ, relating to proceedings for the release of a seizure of assets carried out prior to the opening judgment.

Cass. 2e civ., 6 March 1991, LawLex202100001097JBJ.

CA Paris, 25 November 2021, LawLex202100006035JBJ (LJ).

Cass. com. 23 September 2014, LawLex202100002131JBJ (LJ), holding that such an action is not linked to the status of partner, but tends to the recovery of the claim that the partner has against the legal entity.

Cass. 3e civ., 3 May 2018, LawLex202100002147JBJ (LJ).

Cass. com., 16 October 2001, LawLex202100002126JBJ (LJ).

Cass. crim., 9 March 2016, LawLex202100002774JBJ (LJ) ; 30 January 2019, LawLex202200011551JBJ (LJ)..

Cass. crim., 24 June 2020, LawLex202200011530JBJ (LJ).

Cass. crim., 9 March 2016, LawLex202100002774JBJ (LJ).

Bankruptcy Law

686. Rights and actions relating to debtor's assets

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686. Rights and actions relating to debtor's assets

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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