Bankruptcy Law

In order to promote access to credit for businesses, even when they are experiencing difficulties, Article L. 622-28(1) of the Commercial Code , excludes from the rule of suspension of accrual of interest, interest arising from loan contracts concluded for a term equal to or greater than one year  or contracts with a deferred payment period of one year or more, even if they have been rescinded bef …

Scope of the exception

In order to promote access to credit for businesses, even when they are experiencing difficulties, Article L. 622-28(1) of the Commercial Code , excludes from the rule of suspension of accrual of interest, interest arising from loan contracts concluded for a term equal to or greater than one year  or contracts with a deferred payment period of one year or more, even if they have been rescinded before the pronouncement of the liquidation . Indeed, in the absence of any distinction provided for in the text, the rule applies whether or not the loan contracts in question are outstanding on the date of the opening of the insolvency procedure . The exception applies equally to statutory interest and contractual interest on arrears , and even to the penalty clause which penalizes late payment and provides for increased interest in relation to that resulting from a loan concluded for a term equal to or greater than one year, subject to the court's power of moderation .

Which loan contracts are covered by the exception? The Court of Cassation may have appeared hesitant as to the assimilation of a credit facility to a loan contract in terms of the benefit of the exception to the rule that interest must stop accruing: it initially accepted this assimilation , then rejected it , before returning to its initial position and considering that when it is granted for a term equal to or greater than one year, the credit facility from which the debtor benefits is identified with a loan for the application of Article L. 622-28 . However, this exception does not apply to leasing contracts, so that a lessor cannot order the debtor's guarantor to pay contractual interest . Similarly, an everyday account agreement which does not provide for the period during which funds are to be made available, or the terms of repayment, does not constitute a loan of more than one year within the meaning of Article L. 622-28 . Furthermore, amendments to a loan contract concluded for a period of six months, which grant three successive extensions of the period offered to the debtor for its repayment, cannot give it the character of a loan concluded for a period equal to or greater than one year, with regard to the provisions of Article L. 622-28 .

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-3 C. com.

Cass. com., 4 April 2006, LawLex202100002799JBJ (RJ) ; 9 June 2021, LawLex202200008075JBJ (LJ).

Cass. com., 23 April 2013, LawLex202100002771JBJ (RJ).

Cass. com., 29 April 2003, LawLex202200002765JBJ (RJ).

Cass. com., 6 July 1993, LawLex202200002781JBJ (RJ).

Cass. com., 16 April 1991, LawLex202100002768JBJ (RJ) ; 11 May 1993, LawLex202200002770JBJ (RJ).

Cass. com., 16 June 2021, LawLex202100005854JBJ (RJ); 27 November 1991, LawLex202200002769JBJ (RJ) ; 2 November 2016, LawLex202100002412JBJ (RJ).

Cass. com., 2 July 2013, LawLex202200002772JBJ (S).

Cass. com., 19 March 1996, LawLex202200002780JBJ (RJ).

Cass. com., 6 May 1997, LawLex202100002770JBJ (RJ).

Cass. com., 9 January 2001, LawLex202100002769JBJ (LJ) ; 17 October 2018, LawLex202100002838JBJ (LJ).

Cass. com., 29 May 2001, LawLex202200002764JBJ (RJ).

Bankruptcy Law

780. Scope of the exception

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

780. Scope of the exception

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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