Bankruptcy Law

The optional nullity of payment of matured debts, onerous deeds, third-party notices, seizures and oppositions is subject to knowledge of the debtor's state of cessation of payments by those who have dealt with him . This condition is not required in order to declare the de jure nullities of Article L. 632-1, I of the Commercial Code , or to declare the optional nullity of free deeds and declarati …

Third party's knowledge of cessation of payments

The optional nullity of payment of matured debts, onerous deeds, third-party notices, seizures and oppositions is subject to knowledge of the debtor's state of cessation of payments by those who have dealt with him . This condition is not required in order to declare the de jure nullities of Article L. 632-1, I of the Commercial Code , or to declare the optional nullity of free deeds and declarations of unseizability. 

The third party's knowledge of the debtor's cessation of payments is assessed at the date of payment, and not at the time of the event giving rise to the payment . An assignment of claims may not be annulled where it has not been established that the assignee bank was aware of the debtor's situation at the time of the assignment . Attachments made by a creditor after the date of cessation of payments cannot be challenged if it is not established that the creditor had personal knowledge of the seriousness of the debtor's situation  at the date of service . Proof provided by the debtor and his receiver that the seizing creditor was merely aware of the risk of suspension of payments is insufficient . 

The Court of Cassation considers that neither the status of manager of the third-party beneficiary, a legal entity , nor that of principal of a judicial commissioner who is initiating enforcement measures , implies knowledge of the debtor's cessation of payments. Nor does knowledge of the debtor's state of insolvency presuppose knowledge of that state on the part of the legal entity he or she heads . Similarly, a lessor who is the beneficiary of a transfer of equipment and vehicles cannot be presumed to have been aware of the debtor's suspension of payments simply because he shares the same head office and customer base as the debtor's bank . 

The dual status of a natural person as manager of the debtor company and creditor has often enabled the court to presume knowledge of the debtor's suspension of payments. Bank transfers and cheques drawn during the suspect period have been cancelled when the manager, who was the beneficiary, was aware that the company was in a state of suspension of payments . Transfers made by the debtor to a creditor during the suspect period were also cancelled in the presence of joint managers . The repayment of part of the everyday account of the managing partner, who actually exercised financial management functions, made during the suspect period, was likewise rendered null and void, since he had personal knowledge of the company's state of suspension of payments at the time of payment . On the contrary, the payment was not null and void when it was made to an absent co-managing partner who had not been informed of the rejection of cheques and the non-payment of social security contributions, due to conflicts with the other co-managing partner .

The courts are sovereign in their assessment of the third party's knowledge of the debtor's cessation of payments . A number of factors may establish such knowledge, including the fact that the creditor : received payment after having summoned the debtor to open an insolvency procedure ; after having unsuccessfully claimed payment of his claims, gave up pursuing an action for payment which he knew was doomed to failure, and preferred to buy back the debtor's business by offsetting the amount of his claim ; issued third-party notices after being informed by the ad hoc receiver that any enforcement action would result in immediate bankruptcy, and by the debtor that he would not be able to settle his debts unless a new payment schedule was drawn up  ; carried out a seizure-attribution after being confronted with an accumulation of payment incidents on the part of the debtor, the latter's inability to respond to a formal notice and the opening of a conciliation procedure which ended in failure ; levied seizures and oppositions with knowledge of the debtor's recurrent cash flow difficulties, in particular his inability to pay both his past claims, which URSSAF had agreed to reschedule, and his current contributions ; issued a third-party notice after failure to pay a first instalment under a payment schedule .

C. com. L. 632-2, applicable to the court-supervised liquidation procedure by reference to art. L. 641-14 C. com.

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-14 C. com. See in particular, Cass. com. 4 January 2000, LawLex202200006905JBJ (LJ).

Cass. com., 16 June 2009, LawLex202200006816JBJ (LJ).

CA Versailles, 19 September 2013, LawLex202200006771JBJ (LJ) ; Cass. com., 9 January 1996, LawLex202200006920JBJ (RJ).

Cass. com., 16 February 1993, LawLex202200006922JBJ (RJ).

Cass. com., 20 April 2017, LawLex202100003728JBJ (LJ).

Cass. com., 19 November 2013, cited above.

Cass. com., 27 October 1998, LawLex202100004246JBJ (LJ).

CA Paris, 23 June 2016, LawLex202200006811JBJ (LJ).

Cass. com., 30 October 2000, LawLex202200006924JBJ (LJ).

CA Toulouse, 10 May 2007, LawLex202100003597JBJ (RJ).

Cass. com., 17 July 2001, LawLex202100001996JBJ (LJ).

CA Aix-en-Provence, 6 November 2015, LawLex202200006814JBJ (RJ) ; CA Caen, 20 December 2018, LawLex202200006807JBJ (LJ).

CA Fort-de-France, 19 March 2010, LawLex202200006776JBJ (RJ). Comp. Cass. com. 5 May 2015, LawLex202200006775JBJ (RJ), holding that non-compliance with a schedule agreed between a debtor and his creditor is not sufficient to characterize the latter's knowledge of the debtor's inability to meet his current liabilities with his available assets.

Cass. com., 6 June 2001, LawLex202100003672JBJ (RJ).

CA Bordeaux, 10 September 2013, LawLex202200006806JBJ (RJ); CA Versailles, 19 November 2015, LawLex202200006815JBJ (LJ), holding that seizures of rent made during the suspect period by a syndicate of co-owners from the tenants of a debtor SCI, cannot be annulled, where proof of knowledge of liabilities exceeding assets by the latter or through a bailiff, is not reported.

CA Angers, 25 January 2022, LawLex202200002250JBJ (RJ).

CA Versailles, 18 July 2013, LawLex202200006813JBJ (RJ).

Cass. com., 19 November 2013, LawLex202100001997JBJ (LJ).

Cass. com. 2 December 2014, LawLex202100003727JBJ (RJ), holding that knowledge of a debtor's state of cessation of payments, by the bailiff who initiates enforcement measures during the suspect period, does not imply that of his principal, since he is bound by professional secrecy.

Cass. com., 23 May 2000, LawLex202200006244JBJ (RJ).

Bankruptcy Law

833. Third party's knowledge of cessation of payments

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

833. Third party's knowledge of cessation of payments

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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