Bankruptcy Law

The liquidator  has sole authority to act on behalf of and in the collective interest of the creditors, in accordance with Article L. 622-20(1) of the Commercial Code, applicable to the court-supervised liquidation procedure by reference of Article L. 641-4. As the defender of the collective interest and not that of the parties to the contract, a clause conferring jurisdiction stipulated in a cont …

Monopoly of the liquidator

The liquidator  has sole authority to act on behalf of and in the collective interest of the creditors, in accordance with Article L. 622-20(1) of the Commercial Code, applicable to the court-supervised liquidation procedure by reference of Article L. 641-4. As the defender of the collective interest and not that of the parties to the contract, a clause conferring jurisdiction stipulated in a contract concluded, prior to the opening of the procedure, between the debtor and a third party co-contractor, cannot be against it .

The monopoly conferred by Article L. 622-20 rules out the possibility of a partner or, more generally, a creditor, taking action against a bank for aggravation of liabilities . Similarly, a debtor is not entitled to bring a liability action against his bank for abusive maintenance, followed by abrupt termination, of credit facilities, or for restitution of a sum unduly withdrawn from his everyday account, provided that, on the one hand, these faults only harm creditors whose interests can only be defended by the liquidator , and, on the other hand, that he does not justify a harm distinct from those creditors . Only the liquidator has standing to sue for collective harm for the loss of share capital . On the other hand, the liquidator is not entitled to bring an action against the partners of a non-trading company, since they remain personally liable to the company's creditors, even in the event of an insolvency procedure .

The Court of Cassation held that the liquidator did not have to specifically designate the creditors he represented, since he could only legally act in the interest of all creditors . Consequently, he could not act in the personal interest of a creditor or group of creditors, such as, in the case of management leases, creditors with a claim necessary for the operation of the business , as referred to in Article L. 144-6 of the Commercial Code. Similarly, he could not act against the wife of a deceased businessman on behalf of creditors holding a claim for the continued operation of the business received in partition . For the same reason, he was not empowered to act against the enforceability of the declaration of unseizability in the interests of the sole creditors whose rights arose after its publication , in connection with the declarant's professional activity , nor to proceed with the sale of an immovable that had been the subject of a declaration of unseizability  or to proceed with the sale by auction of the latter .

However, the Court of Cassation has reversed its position, and now considers that the creditors' representative can challenge the legality of the debtor's declaration of unseizability . Since the Court of Cassation has defined the collective interest as the protection and reconstitution of the common pledge of the creditors , it should, for the sake of consistency, have accepted that the liquidator can take action to contest the legality of the declaration, such action being aimed precisely at the protection and reconstitution of the common pledge of the creditors. Logically, this solution should extend to all actions aimed at reconstituting the common pledge, even if they appear to benefit only one category of creditors.

Cass. com., 9 June 2022, LawLex202200006666JBJ (LJ).

Cass. com., 23 April 2013, LawLex202200002868JBJ (LJ).

Cass. com., 13 March 2012, LawLex202200001799JBJ (LJ).

Cass. com., 18 June 2013, LawLex202100001439JBJ (LJ).

Cass. com., 30 June 2015, LawLex202100002965JBJ (LJ).

Cass. com., 15 November 2016, LawLex202100001446JBJ (LJ) ; 15 November 2017, LawLex202200001919JBJ(LJ).

Cass. com., 2 June 2015, LawLex202100001543JBJ (RJ).

Cass. com., 3 June 1997, LawLex202100005441JBJ (LJ).

Cass. com., 5 January 1999, LawLex202100005444JBJ (RJ)

Cass. com., 27 May 2003, LawLex202100005604JBJ (RJ).

Cass. com., 23 November 2004, LawLex202100005614JBJ (LJ).

Cass. com., 24 January 2006, LawLex202100002950JBJ (LJ).

Cass. com., 16 March 1993, LawLex202100002962JBJ (LJ).

Cass. com., 9 November 2004, LawLex202100005446JBJ (LJ) ; 13 December 2005, LawLex202100005564JBJ(LJ).

Cass. com., 17 September 2013, LawLex202100004185JBJ (LJ).

Bankruptcy Law

810. Monopoly of the liquidator

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810. Monopoly of the liquidator

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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