Bankruptcy Law

For the sake of consistency of decisions within the insolvency procedure, case law has held that where a decision to admit a claim has the force of res judicata, an action for nullity is inadmissible against the deed on which it is based . The authority of res judicata attached to a decision to allow a privileged claim, due to the registration of a judicial mortgage, therefore precludes an action  …

Obstacle to action for invalidity

For the sake of consistency of decisions within the insolvency procedure, case law has held that where a decision to admit a claim has the force of res judicata, an action for nullity is inadmissible against the deed on which it is based . The authority of res judicata attached to a decision to allow a privileged claim, due to the registration of a judicial mortgage, therefore precludes an action for annulment of this registration, even in the event of postponement of the date of cessation of payments .

Nevertheless, the Court of Cassation specifies that, in order to be res judicata with regard to the validity of payments made during the suspect period, a decision admitting claims must rule on this issue in its operative part . Consequently, transfers, cheques and bills of exchange made to a bank during the suspect period, with a view to reducing the debtor's balance at a date when the bank is aware of the cessation of payments, are null and void even when that negative balance has been the subject of a decision admitting the debtor's liabilities, insofar as that decision has not had the effect of deeming the payments to be regular .

See in particular Cass. com., 5 April 2011, LawLex202100002020JBJ (RJ) ; 13 October 1998, LawLex202100003446JBJ (LJ) ; 14 October 1997, LawLex202100001504JBJ (LJ).

Cass. com., 19 December 2018, LawLex202100002021JBJ (LJ).

Cass. com., 8 June 1999, LawLex202100003447JBJ (RJ) ; 17 July 2001, LawLex202100001996JBJ (LJ).

Cass. com., 24 October 1995, LawLex202100002023JBJ (RJ).

Bankruptcy Law

840. Obstacle to action for invalidity

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Les notions juridiques connexes

840. Obstacle to action for invalidity

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