Bankruptcy Law

The individual or collective interests of creditors may be defended in a liability action based on Article 1240 of the Civil Code or Article L. 650-1 of the Commercial Code. A paulian action, as defined by Article 1341-2 of the Civil Code, may also be brought.
1) Liability action against third parties
Under the terms of Article 1240 of the Civil Code, “[a]ny act of man whatsoever, which causes dam …

Actions against third parties

The individual or collective interests of creditors may be defended in a liability action based on Article 1240 of the Civil Code or Article L. 650-1 of the Commercial Code. A paulian action, as defined by Article 1341-2 of the Civil Code, may also be brought.

1) Liability action against third parties

Under the terms of Article 1240 of the Civil Code, “[a]ny act of man whatsoever, which causes damage to another, obliges the person by whose fault it occurred to repair it”. The court-supervised liquidator and, subsidiarily, the auditors, can take action against third parties in order to protect and reconstitute the common pledge of creditors. In fact, once the liquidator, who represents the collective interest, has brought an action for compensation for the loss resulting from the aggravation of the debtor's liabilities caused by the fault of a third party, no creditor is entitled to bring an individual action against the latter for compensation for the loss caused by the immobilization of his claim, inherent in the insolvency procedure . The liquidator may also take action against creditors, on the basis of Article L. 650-1 of the Commercial Code, in respect of assistance granted in the event of fraud or gross interference in the management of the debtor, or if the guarantees given in compensation for such assistance are disproportionate .

Under Article L. 622-20 of the Commercial Code, applicable to the court-supervised liquidation procedure by reference of Article L. 641-4, the liquidator has the necessary standing and interest to bring a paulian action  on behalf of the creditors and in their collective interest. Under Article 1341-2 of the Civil Code, a creditor may bring a paulian action in his or her own name to have acts performed by the debtor in fraud of his or her rights declared unenforceable, provided that, in the case of an act for valuable consideration, the third party was aware of the fraud. Indeed, the exclusive right conferred on the liquidator by Article L. 622-20 of the Commercial Code to act on behalf and in the interest of creditors does not prevent a creditor from bringing a paulian action against all acts performed by the debtor in fraud of his rights . Moreover, a paulian action may also be brought on behalf and in the interest of creditors by the liquidator . Creditors can exercise the paulian action without having to demonstrate that several creditors would be entitled to do so . On the other hand, the liquidator cannot claim to exercise the paulian action in place of creditors who have withdrawn their action for annulment of a gift made by the debtor to his daughter .

Cass. ass. plén., 9 July 1993, LawLex202100002940JBJ (LJ).

See for an application, Cass. com., 18 January 2017, LawLex202100002955JBJ (RJ).

Cass. com., 10 November 2009, LawLex202100003677JBJ (LJ).

Cass. com., 8 Octobre 1996, LawLex202100001617JBJ (LJ).

Cass. com., 13 November 2001, LawLex202100001740JBJ (RJ) ; 23 April 2013, LawLex202200002868JBJ (LJ).

Cass. 1re civ., 29 May 2013, LawLex202100001611JBJ (RJ).

Cass. com., 30 November 1993, LawLex202200001833JBJ (RJ).

Bankruptcy Law

812. Actions against third parties

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812. Actions against third parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise