Bankruptcy Law

A contract is said to be commutative when each of the parties undertakes to provide the other with a benefit which is considered equivalent to that which he receives . Under Article L. 632-1, I, 2° of the Commercial Code , any commutative contract in which the debtor's obligations significantly exceed those of the other party is null and void if it has been entered into since the date of cessation …

Unbalanced commutative contracts

A contract is said to be commutative when each of the parties undertakes to provide the other with a benefit which is considered equivalent to that which he receives . Under Article L. 632-1, I, 2° of the Commercial Code , any commutative contract in which the debtor's obligations significantly exceed those of the other party is null and void if it has been entered into since the date of cessation of payments. The imbalance between the debtor's obligations and those of its co-contractor is assessed, at the date of conclusion of the contract, with regard only to the obligations it contains, and not to the overall relationship between the parties .

Pursuant to Article L. 632-1, a debtor's contribution to a SCI must be cancelled if, in compensation, he has not received rights in proportion to those attributed to other partners who have contributed significantly less than he has . Similarly, the sale of shares during the suspect period is null and void where there is an imbalance of reciprocal benefits to the detriment of the debtor transferee, due to the deteriorated financial situation of the company whose shares were sold . On the other hand, the sale of shares in an SCI for a symbolic euro during the suspect period does not constitute an unbalanced commutative contract when the transferee has undertaken to assume the company's liabilities, even though the deed of sale excludes any guarantee of liabilities .

A community liquidation statement, included in a final agreement settling the effects of the divorce and concluded after the date of cessation of payments, does not escape the nullity of acts performed during the suspect period, even if it contains provisions relating to maintenance claims or compensatory benefits , if it reveals a significant imbalance to the detriment of the debtor. Similarly, a deed of partition of the community drawn up during the suspect period by spouses following their divorce can be analyzed as a commutative contract that is liable to nullity  if it reflects a significant imbalance that impoverishes the debtor's assets. This is not the case, however, when the value of the business included in the deed of partition, drawn up during the suspect period, has not been overestimated .

Employment contracts entered into by the debtor since the date of cessation of payments are also null and void if they provide for remuneration out of all proportion to the work performed, even if negotiations were initiated prior to this date . Apprenticeship contracts  or qualification contracts  signed during the suspect period are also void where there is an imbalance between the parties' performances, resulting from the debtor company's inability, at the date of conclusion of the contract, to make a financial commitment, over several years, to pay the employee an ever-increasing remuneration.

Lastly, a settlement providing for the reinstatement of a former employee in exchange for the latter's relinquishing the balance of his redundancy payment is null and void where the chances of recovery of the latter are uncertain, the annual salary provided for is close to the amount of the payment, and the need for his position is not justified . The debtor's obligation, as a party to a settlement, to waive its right to a claim in compensation for the payment of a very small part of it, is also a source of manifestly excessive disproportion and establishes the seriously unbalanced nature of the obligations agreed on by both parties . On the other hand, a memorandum of understanding under which the lessee-manager undertakes to pay the lessor for the redundancy of eleven employees cannot be annulled on the grounds that it is unbalanced, since, given the nature of the leased business, the hiring of such a large number of employees constituted a fault on the part of the debtor .

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-14 C. com.

Cass. com., 12 June 2019, LawLex202200008717JBJ (LJ).

Cass. soc., 15 June 2004, LawLex202100001956JBJ (LJ) ; 29 October 2002, LawLex202100001947JBJ (LJ).

Cass. com., 27 November 2001, LawLex202100001946JBJ (LJ).

CA Paris, 28 June 2006, LawLex202100005139JBJ (LJ).

Cass. com., 8 November 2017, LawLex202200008719JBJ (LJ).

Cass. com., 10 December 2002, LawLex202100001944JBJ (RJ).

Cass. com., 3 May 2011, LawLex202100003695JBJ (LJ).

Cass. com., 27 May 2014, LawLex202200008727JBJ (LJ).

Cass. 3e civ., 13 October 2016, LawLex202100003696JBJ (RJ).

Cass. com., 7 November 2006, LawLex202100003710JBJ (LJ).

Cass. 1re civ., 3 June 2003, LawLex202100003692JBJ (LJ).

Cass. com., 15 June 1976, LawLex202100003689JBJ (LJ).

Cass. soc., 21 November 2000, LawLex202100003693JBJ (LJ).

Bankruptcy Law

817. Unbalanced commutative contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

817. Unbalanced commutative contracts

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