Bankruptcy Law

The owner of an asset who fails to bring a claim within three months of publication of the judgment opening the court-supervised liquidation procedure is barred from doing so . A contract of sale with a retention-of-title clause, the price of which has been paid, must be considered as having been fully performed prior to the judgment opening the insolvency procedure, so that a claim filed more tha …

Claimant time-barred from action (forclusion)

The owner of an asset who fails to bring a claim within three months of publication of the judgment opening the court-supervised liquidation procedure is barred from doing so . A contract of sale with a retention-of-title clause, the price of which has been paid, must be considered as having been fully performed prior to the judgment opening the insolvency procedure, so that a claim filed more than three months after this judgment is foreclosed . Under Article R. 624-13 of the Commercial Code, applicable to judicial liquidation by reference to Article R. 641-31, the same sanction applies to a claimant who, in the absence of acquiescence from the liquidator within one month of receipt of the claim, fails to refer the matter to the bankruptcy judge within one month of expiry of the deadline for response. 

The foreclosure of a claim by the owner of an asset held by the debtor does not extinguish his right of ownership , nor does it entail its transfer to the debtor's assets . It does, however, render the right of ownership in the asset unenforceable against the insolvency procedure, and makes the asset part of the common pledge of creditors . In addition, the Court of Cassation has ruled that the declaration of a privileged claim corresponding to unpaid goods by a seller of reserved furniture does not exempt him from claiming the goods if he wishes to assert his right of ownership against the insolvency procedure . 

Nevertheless, the absence of a claim does not prevent a third party who claims to be the owner of seized goods in the hands of the debtor from requesting their segregation in order to oppose the seizing creditor's right . Nor does the inopposability resulting from foreclosure prevent the owner from obtaining restitution of his property against a third-party purchaser acting in bad faith . Furthermore, the owner of equipment supplied to the debtor may, even if he has not made a claim within the time-limit, obtain restitution after the judgment putting an end to the insolvency procedure, by the effect of the irrevocable termination of the lease made prior to the opening judgment . 

The Court of Cassation was asked to rule on the compliance with Article 17 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789, and with Article 1 of the First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, of the sanction of the non-enforceability of the right of ownership in an insolvency procedure. It held that Article L. 624-9 of the Commercial Code does not infringe the claimant's right of ownership , but merely constitutes a restriction on the conditions under which it may be exercised, provided for by law and justified by a reason of general interest, since the purpose of the framework for the claim is to determine rapidly and with certainty the assets likely to be seized by the insolvency procedure, so that a decision can be taken within a reasonable time on the outcome of the procedure in the interests of all .

C. com., art. L. 624-9, applicable to the court-supervised liquidation procedure by reference to art. L. 641-14 C. com.

Cass. com., 28 September 2004, LawLex202200001322JBJ (RJ).

Cass. com., 5 November 2013, LawLex202100003428JBJ (LJ) ; 4 January 2000, LawLex202100003410JBJ (LJ).

Cass. com. 4 January 2000, cited above, considering that in relations between the debtor and the lessor of the thing, the absence of a claim does not entail the extinction of the lessor's right of ownership, nor its transfer to the debtor.

Cass. com., 3 April 2019, LawLex202100001714JBJ (LJ) ; 3 December 2003, LawLex202100003411JBJ (LJ) ; 23 May 1995, LawLex202100003413JBJ (LJ).

Cass. com., 15 October 2013, LawLex202100002281JBJ (LJ).

Cass. com., 26 November 2002, LawLex202100003419JBJ (LJ).

Cass. com., 15 December 2015, LawLex202100003415JBJ (LJ).

See by analogy, Cass. com., 24 March 2004, LawLex202100003420JBJ (RJ).

Cass. com., 14 March 1995, LawLex202100003414JBJ (RJ).

Bankruptcy Law

859. Claimant time-barred from action (forclusion)

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859. Claimant time-barred from action (forclusion)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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