Bankruptcy Law

If the liquidator does not exercise the option to continue the contract, or terminates it, or if the contract is terminated, the non-performance may give rise to the payment of damages to the other party, the amount of which must be declared as a liability. The co-contractor may nevertheless defer restitution of sums paid in excess by the debtor in performance of the contract until a ruling has be …

Compensation for breach or non-performance

If the liquidator does not exercise the option to continue the contract, or terminates it, or if the contract is terminated, the non-performance may give rise to the payment of damages to the other party, the amount of which must be declared as a liability. The co-contractor may nevertheless defer restitution of sums paid in excess by the debtor in performance of the contract until a ruling has been made on damages . Non-performance of the debtor's obligations under a continuing contract entitles the co-contractor to declare a claim for compensation as a liability under the insolvency procedure , whereas failure to perform its commitments prior to the opening judgment only entitles the co-contractor to declare a claim as a liability . 

Termination ipso jure resulting from silence on the part of the receiver for one month, following formal notice to decide whether to continue a contract, confers the same advantage on the contracting party, provided that a clause in the contract provides for compensation in the event of early termination . Indemnities resulting from the non-continuation of the contract by the receiver cannot be accepted when the clause stipulating them does not refer to the hypothesis of the non-continuation of the contract . This is the case of a clause which only provides for payment in the event of termination of the contract at the initiative of the client through no fault of the prime contractor, a situation which cannot be assimilated to the automatic termination resulting from silence on the part of the receiver after formal notice to choose whether or not to continue the contract . In other cases, the co-contractor may declare as a liability of the debtor the indemnities for termination of contracts not pursued, provided that the penalty clause determining the amount is not contrary to the rule of equality of creditors . 

In the absence of formal notice, the receiver's waiver of the right to continue a contract in progress does not entail the automatic termination of the agreement on his initiative, but confers on the co-contractor alone the right to have it pronounced in court and to declare his claim for termination indemnity as a liability of the insolvency procedure . However, the lessor cannot obtain payment of compensation for termination of the contract if, having confined himself to noting the termination and requesting restitution of the leased assets, he does not demonstrate that he has given formal notice to the legal representative to decide whether or not to continue the contract .

The co-contracting parties have a period of one month from the date of automatic termination, or notification of the decision to terminate the contract, to declare their claim .

See in particular, Cass. com., 11 May 1999, LawLex202100002297JBJ (RJ).

CA Aix-en-Provence, 19 December 2019, LawLex202100005079JBJ (RJ).

Cass. com., 15 May 2019, LawLex202100002315JBJ (S).

CA Toulouse, 25 February 2019, LawLex202100005087JBJ (LJ).

Cass. com., 8 March 2017, LawLex202100003327JBJ (LJ).

Cass. com., 1 March 2016, LawLex202100003320JBJ (RJ).

Cass. com., 16 March 2010, LawLex202100003307JBJ (RJ).

C. com. R. 622-21, para. 2, applicable to the court-supervised liquidation procedure by reference to art. R. 641-25 C. com.

Bankruptcy Law

800. Compensation for breach or non-performance

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800. Compensation for breach or non-performance

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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