Bankruptcy Law

In accordance with Article L. 641-13, I of the Commercial Code, to qualify for privileged treatment, a claim arising after the opening judgment must be justified by the needs of the procedure . Claims for the fees of a lawyer appointed to assist a debtor in the exercise of his own rights  or of a chartered accountant appointed to assist the social and economic council, when the consultation proced …

Claim arising for the purposes of the procedure

In accordance with Article L. 641-13, I of the Commercial Code, to qualify for privileged treatment, a claim arising after the opening judgment must be justified by the needs of the procedure . Claims for the fees of a lawyer appointed to assist a debtor in the exercise of his own rights  or of a chartered accountant appointed to assist the social and economic council, when the consultation procedure for economic redundancy is implemented , as well as claims for compensation arising from the termination of an employment contract by the liquidator , are deemed to have arisen for the purposes of the procedure. Furthermore, the usefulness of the service provided by the lessor for the insolvency procedure in progress cannot be disputed, even in the absence of continued activity, since the leasehold right constitutes an essential element of the business, which may be sold by the liquidator as part of the sale of assets .

Regular and subsequent claims may also benefit from the privilege of payment on maturity, provided they arise for the purposes of the provisional maintenance of the business authorized under Article L. 641-10 . The continuation of the debtor's business may, for example, be justified by the need to adopt a sale plan . In fact, claims for the fees of the lawyer in charge of conducting the procedures relating to the adoption of such a plan , as well as the claim for legal costs incurred during the proceedings leading to the adoption and securing of the plan , are considered as having arisen for the purposes of provisionally maintaining the business, and consequently benefit from the legal privilege with the rank attributed to legal costs. Similarly, sums whose payment constitutes a legal obligation for the debtor in an insolvency procedure, are claims “inherent to the activity pursued” by the latter, and therefore benefit from the privilege of payment when due. This is the case for the business property tax , the insurance contribution for involuntarily unemployed workers  and the social solidarity contribution and additional contribution . Furthermore, a claim arising from the payment of invoices to the debtor's suppliers, with a view to the continuation of the worksite subcontracted to the debtor, during the temporary maintenance of the business, must be considered as having arisen for the purposes of the business .

On the contrary, a claim for damages asserted by a franchisor who criticizes a former franchisee for continuing to use the customer rallying signs attached to the franchise network after the termination of the contract and the opening of the insolvency procedure, does not constitute a debt arising for the purpose of provisionally maintaining the business . The same applies to a claim based on loss of earnings resulting from the liquidator's waiver of the right to continue leasing contracts . The debtor may not be ordered to pay a restitution claim arising from an action for rescission of a contract predating the insolvency procedure, but brought afterwards, provided that the claim did not arise for the purposes of the procedure or the continuation of the business .

Lastly, the Ordinance of 18 December 2008  amended Article L. 641-13, which initially required the subsequent claim to have arisen for the purposes of the procedure, “for the debtor's professional activity ” . Now that this last condition has been removed, non-business claims should theoretically be eligible for the payment privilege if the conditions still in force are met. However, case law has been reluctant to recognize such claims as privileged. For example, a decision handed down under the new wording of the text held that a debtor's claim for housing rent, due after the judgment opening his insolvency procedure, did not constitute a debt arising for the purposes of the procedure . Nevertheless, this decision seems open to criticism, since such a claim, arising in consideration of a service provided to the debtor, should be considered a subsequent privileged claim. Similarly, it has been ruled that when the debtor company is no longer in business, its director's travel expenses cannot be classified as a claim arising for the purposes of the procedure and charged to the debtor .

See, a contrario, Cass. com. 15 June 2022, LawLex202200006456JBJ (LJ), holding that the debtor cannot be ordered to pay a restitution claim arising from an action for rescission of a contract predating the insolvency procedure but brought afterwards, since it is not a debt arising for the purposes of the procedure.

Cass. com., 1 December 2015, LawLex202100001073JBJ (LJ).

See by analogy, Cass. com., 17 September 2013, LawLex202100002475JBJ (RJ).

See by analogy, Cass. com., 15 June 2011, LawLex202100002462JBJ (RJ).

See by analogy, Cass. com., 9 May 2018, LawLex202100002463JBJ (RJ).

See by analogy, Cass. com., 20 September 2016, LawLex202100002471JBJ (RJ).

See by analogy, Cass. com., 18 September 2007, LawLex202100002470JBJ (RJ).

Cass. com., 15 June 2022, LawLex202200006456JBJ (LJ).

Ordinance 2008-1345 of 18 December 2008 concerning the reform of the law governing companies in difficulty.

See for an application, Cass. com., 11 October 2016, LawLex202100002477JBJ (LJ).

Cass. com., 12 March 2013, LawLex202100002468JBJ (LJ).

Cass. com., 1 December 2015, cited above.

CA Grenoble, 1 September 2022, LawLex202200008603JBJ (LJ).

Cass. soc., 16 June 2010, LawLex202100002472JBJ (LJ).

Cass. com., 18 May 2022, LawLex202200008140JBJ (LJ).

See by analogy, Cass. com., 7 October 2020, LawLex202100006125JBJ (LJ).

See by analogy, Cass. com., 15 October 2013, LawLex202100001072JBJ (LJ).

Cass. com., 24 March 2021, LawLex202100005846JBJ (LJ).

Bankruptcy Law

760. Claim arising for the purposes of the procedure

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Les notions juridiques connexes

760. Claim arising for the purposes of the procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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