Bankruptcy Law

Any payment, by whatever means, for debts not yet due on the day of payment, is void if it has been made since the date of cessation of payments. However, only payments made by the debtor himself , the main purpose of which is to extinguish his unmatured debts to his creditor , are void on the basis of Article L. 632-1, I, 3° of the Commercial Code, applicable to the court-supervised liquidation p …

Payments on unmatured debt

Any payment, by whatever means, for debts not yet due on the day of payment, is void if it has been made since the date of cessation of payments. However, only payments made by the debtor himself , the main purpose of which is to extinguish his unmatured debts to his creditor , are void on the basis of Article L. 632-1, I, 3° of the Commercial Code, applicable to the court-supervised liquidation procedure by reference from Article L. 641-14.

Under this article, the assignment of a business claim made during the suspect period is null and void if it is made with a view to paying an unmatured debt . This is the case when its purpose is not to secure a new loan, but to settle the previous overdraft on the assignor's everyday account, which has not been closed . On the other hand, the Court of Cassation considers that the assignment of a business claim, made during the suspect period and granted solely by way of security, does not amount to payment of the secured claim, and cannot therefore be annulled, as it implies the restitution of the assigned right in the event that the secured claim is paid, and only achieves a provisional transfer of the ownership of this right .

Early repayment of a loan granted to the debtor by a bank during the suspect period is also null and void , except where the agreement stipulates that, in the event of cessation of business, the sums paid in execution of the loan will be payable ipso jure, and even more so where such payment has not impoverished the debtor .

Finally, the debtor's early repurchase of a leased asset, subsequently resold at a higher price, is not a payment for an unmatured debt, but a repurchase of equipment, which does not incur nullity .

Cass. com. 21 November 1995, LawLex202200006778JBJ (RJ); 30 November 1993, LawLex202200006779JBJ (RJ), considering that nullity for payment of a debt not yet due is not incurred for acts performed by the debtor's wife. See also. Cass. com. 2 March 2022, LawLex202200002260JBJ (LJ), noting that the early repayment of a loan made by means of checks drawn on the account of the debtor company during the suspect period is not null and void, when the sums in question merely transited through this account in the name of the guarantors of the loan, in order to fulfill their commitment.

Cass. com., 20 May 1997, LawLex202200008728JBJ (LJ).

Cass. com. 12 July 2004, LawLex202200006777JBJ (RJ); May 19 2015, LawLex202100001952JBJ (LJ), holding that the assignment of a professional claim is void, even though it was granted in execution of a framework agreement signed prior to the date of cessation of payments, when its purpose is to extinguish an unmatured debt.

Cass. com., 2 November 2005, LawLex202100001951JBJ (LJ).

Cass. com., 22 March 2017, LawLex202100002756JBJ (LJ); Cass. com., 22 January 2002, LawLex202200006780JBJ (LJ).

Cass. 1re civ., 25 January 2000, LawLex202100003726JBJ (LJ).

CA Paris, 3 May 2018, LawLex202200006781JBJ (LJ).

Bankruptcy Law

818. Payments on unmatured debt

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Les notions juridiques connexes

818. Payments on unmatured debt

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise