Bankruptcy Law

Under Article L. 641-13, I of the Commercial Code, claims arising after the judgment opening or declaring a court-supervised liquidation are, under certain conditions, paid when due. If a claim has not been brought to the attention of the liquidator within one year of the end of the observation period of the initial receivership procedure, it loses its privileged rank in the order of payments unde …

Payment on due date and individual actions

Under Article L. 641-13, I of the Commercial Code, claims arising after the judgment opening or declaring a court-supervised liquidation are, under certain conditions, paid when due. If a claim has not been brought to the attention of the liquidator within one year of the end of the observation period of the initial receivership procedure, it loses its privileged rank in the order of payments under the insolvency procedure. If it was duly incurred after the opening judgment for the purposes of the procedure, it must be paid when due . The liquidator must therefore pay a subsequent privileged claim as it falls due, without having to check whether he has sufficient funds to pay all creditors .

In the absence of payment on the due date, claims are in principle settled in the order set out in II of Article L. 643-8. However, case law accepts that a subsequent creditor, who is not deprived of his individual right of action, may sue for payment of a claim that has not been paid when due , or obtain an enforcement order and have it enforced, irrespective of the order in which privileges are exercised . As under the Old Law (Ancien Droit), payment remains the "price of the race": the first to seize is the first to be paid, whatever the order of his claim, i.e. regardless of the existence of other claims benefiting from a preferential rank , as long as they have not taken the initiative of individual proceedings .

As a result, a tax collector holding a debt arising after the opening judgment and remaining unpaid may issue a third-party notice to the liquidator in order to recover the claim , unless the liquidator has deposited the sums collected in the performance of his duties with the Deposit and Consignment Office (Caisse des Dépôts et Consignations) . This deposit renders the funds exempt from seizure, so that the creditors holding such claims subsequent creditors cannot bring individual actions, and are allocated to the settlement of creditors according to their rank . The creditor may also seize the debtor's property from the notary responsible for selling it, and pay himself , or seize the debtor's assets .

The exercise of the individual right of action is not conditional on the establishment of a list of claims that have not been paid, nor on the entry of a claim on this list . Indeed, the fact that a claim has not been entered on the list of subsequent claims has no effect on the creditor's right to take legal action before the ordinary courts, when his claim falls within the scope of Article L. 622-17 of the Commercial Code .

CA Versailles, 7 July 2022, LawLex202200010129JBJ (LJ).

Cass. com., 10 July 1990, LawLex202100005138JBJ (RJ).

Cass. com., 6 July 1993, LawLex202100002492JBJ (RJ).

Cass. com., 11 February 1997, cited above; 22 April 1997, cited above.

Cass. com., 28 June 2016, LawLex202100002488JBJ (LJ).

Cass. com., 20 March 2001, LawLex202100002501JBJ (RJ).

Cass. com., 9 May 2018, LawLex202100002463JBJ (LJ) ; 7 September 2010, LawLex202100002493JBJ (RJ) ; 6 October 2012, LawLex202100002490JBJ (LJ) ; 13 October 1998, LawLex202100005182JBJ (LJ).

Cass. com., 22 April 1997, LawLex202100005185JBJ (LJ).

Cass. com., 3 June 1997, LawLex202100005184JBJ (LJ).

Cass. com., 25 June 1996, LawLex202100002486JBJ (LJ) ; 20 June 1989, LawLex202100002482JBJ (RJ).

Cass. com., 5 May 1998, LawLex202100005186JBJ (LJ).

Cass. com., 22 May 2007, LawLex202100002495JBJ and LawLex202100002498JBJ (RJ).

Cass. com., 11 February 1997, LawLex202100005183JBJ (LJ).

Bankruptcy Law

764. Payment on due date and individual actions

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764. Payment on due date and individual actions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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