Bankruptcy Law

In accordance with Article L. 622-21, I, 1° of the Commercial Code, applicable to the court-supervised liquidation procedure by virtue of Article L. 641-3, the opening judgment interrupts or prohibits any legal action on the part of prior creditors and subsequent non-privileged creditors, seeking to order the debtor to pay a sum of money. In particular, the principle of suspending actions for paym …

Exclusion of monetary penalties

In accordance with Article L. 622-21, I, 1° of the Commercial Code, applicable to the court-supervised liquidation procedure by virtue of Article L. 641-3, the opening judgment interrupts or prohibits any legal action on the part of prior creditors and subsequent non-privileged creditors, seeking to order the debtor to pay a sum of money. In particular, the principle of suspending actions for payment precludes any judicial allocation of a property mortgaged by the debtor , summary proceedings for the payment of a residential rent debt, even if personal to the debtor , or an estimatory action accompanied by a claim for damages for loss of enjoyment . Furthermore, an action brought against a debtor to guarantee the sums he was responsible for repaying following his divorce is subject to the stay of action if its purpose is to order him to pay sums of money for a cause that predates the opening of the insolvency procedure . This is also the case for a claim arising from a compensatory allowance .

A claim which, under the guise of condemning the debtor to an obligation to perform, which necessarily results in damages in the event of non-performance, in reality seeks payment of a sum of money, is contrary to the principle of the individual stay of action . Consequently, a creditor cannot obtain a penalty ordering the debtor to build a retaining wall , demolish a structure , stop work and restore the creditor's land , or water supply basins , since the action is indirectly aimed at the payment of a sum of money for a cause prior to the opening of the procedure, and is therefore subject to the principle of the stay of action. The action of a guarantor, which is based on the performance of an obligation to act in order to obtain from the debtor company a commitment to pay a sum of money to the creditor bank, also comes up against the principle of the individual stay of proceedings . Similarly, an action for the liquidation of a penalty ordered by a decision made prior to the opening judgment is subject to the suspension of individual lawsuits, insofar as it obliges the debtor to pay a sum of money . Nor can the issue and validation of a constraint against the debtor, subsequent to the opening of the insolvency procedure, lead to the debtor being ordered to pay .

The public policy principle of the stay of individual proceedings prohibits a creditor whose claim arose prior to the opening of the insolvency procedure from referring the matter to the arbitral tribunal after the proceedings have been opened, without first undergoing the procedure for the verification of claims . The suspension of individual lawsuits is a rule of public policy in international law: it prohibits the court from granting an application for enforcement of an arbitral award ordering the debtor to pay various sums of money . Furthermore, a judgment ordering the debtor to pay a sum of money, rendered after the proceedings have been interrupted and not confirmed by the organs of the procedure, must be deemed null and void .

Lastly, the suspension of individual action constitutes a public policy objection that can be raised in any case and must be raised ex officio by the court . However, the guarantors of a debtor company subject to a court-supervised liquidation procedure are not entitled to challenge the company's order to pay certain sums to a creditor on the basis of the stay of individual action, which only concerns the debtor .

Cass. com., 28 June 2017, LawLex202100001588JBJ (LJ).

Cass. com., 23 October 2019, LawLex202100002582JBJ (LJ).

Cass. com., 6 June 1995, LawLex202100005201JBJ (RJ).

Cass. com., 21 January 2003, LawLex202100002459JBJ (RJ) ; 15 June 2011, LawLex202100002565JBJ (RJ).

Cass. com., 17 February 2015, LawLex202100005198JBJ (RJ).

Cass. com., 2 June 2004, LawLex202100002526JBJ (RJ).

Cass. 1re civ., 6 May 2009, LawLex202100005194JBJ (LJ).

Cass. com., 26 January 2010, LawLex202100002567JBJ (S).

Cass. 3e civ., 24 June 2021, LawLex202100006232JBJ ; Cass. com., 12 January 2010, LawLex202100005196JBJ (LJ) ; 17 February 2015, LawLex202100005206JBJ (LJ).

Cass. com., 11 May 1993, LawLex202100001059JBJ (LJ).

Cass. com., 18 February 2003, LawLex200500003855JBJ (LJ).

Cass. com., 29 May 2019, LawLex202100002503JBJ (LJ).

Cass. com., 13 June 2019, LawLex202100002691JBJ (LJ).

Cass. com. 9 July 1996, LawLex202100002515JBJ (RJ); 23 January 2001, LawLex202100005214JBJ (RJ), holding that a request to replace the engine of a boat acquired from the debtor before the opening judgment, an obligation to perform whose non-performance can only be resolved by damages, is equivalent to a request for payment of a sum of money.

Cass. com., 17 June 1997, LawLex202100002517JBJ (LJ).

Cass. com., 23 November 2004, LawLex202100002543JBJ (RJ).

Cass. com., 22 March 2011, LawLex202100002542JBJ (RJ).

Cass. com., 17 October 2000, LawLex202100005213JBJ (RJ).

Bankruptcy Law

705. Exclusion of monetary penalties

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Les notions juridiques connexes

705. Exclusion of monetary penalties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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