Bankruptcy Law

In accordance with Article L. 624-12 of the Commercial Code, applicable to the court-supervised liquidation procedure by reference to Article L. 641-14, goods whose sale has been cancelled prior to the opening of the procedure, either by court ruling or by the operation of an acquired resolutory condition, may be reclaimed by their owner if they exist in kind, in whole or in part, whether or not h …

Restitution following rescission

In accordance with Article L. 624-12 of the Commercial Code, applicable to the court-supervised liquidation procedure by reference to Article L. 641-14, goods whose sale has been cancelled prior to the opening of the procedure, either by court ruling or by the operation of an acquired resolutory condition, may be reclaimed by their owner if they exist in kind, in whole or in part, whether or not he was aware of the debtor's state of cessation of payments .

The text refers to the resolutory condition and not necessarily to a resolutory clause. Accordingly, the rescission of a contract of sale due to non-payment of the price before the court ruling opening of the buyer's procedure, by virtue of an implied resolutory condition, albeit not expressly stipulated, authorizes the seller to reclaim the item without having to establish that the retention of title clause was in writing at the date of delivery . In the case of an express clause, the lessor who gave notice of its implementation before the opening of the lessee's insolvency procedure may claim the leased equipment . Lastly, where a resolutory clause stipulates that failure to pay a single instalment will result in rescission of the contract, the date on which the instalment falls due must be used to determine whether the clause has produced its effects before or after the opening court ruling, even if the summons to pay was issued afterwards . If the sale has been rescinded after the court ruling on the opening of the business due to non-payment of the price, the seller's claim on goods held by the debtor which are not subject to a retention of title must be declared inadmissible . 

On the other hand, paragraph 2 of Article L. 624-12 allows a claim to be made, even though resolution of the sale has been pronounced or established by a court decision subsequent to the court ruling opening the procedure, when the claim or rescission action was brought prior to the opening of the procedure by the seller, for a reason other than non-payment of the price.

Cass. com., 19 June 1978, LawLex202200003658JBJ (LJ).

CA Caen, 25 January 2007, LawLex202200003915JBJ (LJ).

CA Dijon, 5 June 2007, LawLex202200003912JBJ (RJ).

CA Nancy, 24 October 2012, LawLex202200003678JBJ (LJ).

Bankruptcy Law

866. Restitution following rescission

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866. Restitution following rescission

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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