Bankruptcy Law

An ongoing contract may be continued without the other party having sent the receiver or, failing that, the liquidator, a formal notice to decide on its continuation . In the absence of a formal notice, the contract is not rescinded ipso jure, even in the event of inaction by the liquidator or receiver . Indeed, the continuation of an ongoing contract, the rescision of which cannot result solely f …

Fate of contract in the absence of formal notice

An ongoing contract may be continued without the other party having sent the receiver or, failing that, the liquidator, a formal notice to decide on its continuation . In the absence of a formal notice, the contract is not rescinded ipso jure, even in the event of inaction by the liquidator or receiver . Indeed, the continuation of an ongoing contract, the rescision of which cannot result solely from the opening of the receivership procedure, is subject neither to a request for continuation emanating from the organs of the insolvency procedure , nor to its performance by the liquidator or receiver, in the absence of an express or tacit option on his part . 

If the debtor's co-contractor has not served formal notice, the receiver may expressly or tacitly decide to continue the contract. He expressly opts for the continuation of the agency contract when he sends a letter to the receiver informing him that he is ready to study any serious proposal and submit it to the court as part of a disposal plan . Similarly, the liquidator's request for an extension of the deadline for deciding whether or not to continue a contract demonstrates his willingness to continue it, even if he has never been given formal notice to opt, and if the ordinances of the bankruptcy judge granting extensions have subsequently been annulled .

The agent tacitly opts for the continuation of ongoing contracts when, after the opening of the court-supervised liquidation, he agrees to the debtor's payment of rent due under a lease , or when he fails to hand over the keys of the leased premises to the lessor . This intention can also be inferred from opposition to the notary's deposit of collected rents . The liquidator's tacit option to continue a contract may also be inferred from the declaration made in his submissions of his intention not to terminate the contract, even in the absence of prior formal notice to exercise this option . Similarly, an attorney opting to continue contractual relations with a law firm may associate himself with the submissions made on behalf of the debtor by the latter, even if he has chosen to be represented by another attorney . On the other hand, a letter from the receiver requesting a new loan from the debtor's bank does not constitute a waiver of the right to continue the previous loan .

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Cass. com., 28 January 1997, LawLex202100005037JBJ (RJ).

Cass. com., 25 October 2017, LawLex201700001745JBJ (LJ).

Cass. com., 7 November 2006, LawLex202100003309JBJ (RJ).

Cass. 1re civ., 13 July 2004, LawLex202100005036JBJ (RJ).

Cass. com., 19 October 1993, LawLex202100005136JBJ (LJ).

Cass. com., 3 December 1996, LawLex202100005034JBJ (LJ).

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Bankruptcy Law

791. Fate of contract in the absence of formal notice

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791. Fate of contract in the absence of formal notice

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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