Bankruptcy Law

In accordance with Article L. 624-18 of the Commercial Code , the price or part of the price of movables, tangible and intangible, existing in their original condition, which has not been paid, settled in value, or compensated between the debtor and the buyer at the date of the opening court ruling, may be claimed. The text refers to the case where the debtor resells the item before the price has  …

Claiming the resale price of the property

In accordance with Article L. 624-18 of the Commercial Code , the price or part of the price of movables, tangible and intangible, existing in their original condition, which has not been paid, settled in value, or compensated between the debtor and the buyer at the date of the opening court ruling, may be claimed. The text refers to the case where the debtor resells the item before the price has been paid to the original seller. The right to reclaim ownership is transferred to the resale price of the item, which is no longer materially part of the debtor's assets. 

In the case of both price and property claims, a preliminary procedure before the liquidator is a mandatory prerequisite . On the other hand, it is not required that the asset whose price is claimed exists in kind in the debtor's assets on the date of the opening court ruling , but only on the date of its delivery to the sub-purchaser . Thus, the resale, prior to the opening ruling, of certain goods in their original condition does not preclude, subject to their identification, the assertion of the price claim due by the sub-purchasers , provided that the goods resold have not been the subject of any settlement between the debtor and the sub-purchaser, either before or after the opening of the procedure . 

Article L. 624-18 requires that the price has neither been paid, nor settled in value, nor compensated between the debtor and the buyer at the date of the court ruling opening the procedure. According to the Court of Cassation, a payment in kind made by the sub-purchaser does not constitute a method of payment which prevents the owner from reclaiming the price of the goods . Similarly, the entry in an account of a debt corresponding to the unpaid sale price of goods subject to a retention-of-title clause does not constitute payment of this debt if the parties have not expressly stated their intention to settle their relations by means of the current account mechanism . 

The owner may claim the price of the property from the debtor , regardless of whether or not the price has been paid prior to the claim . On the other hand, if the resale price has been paid at the time of the claim, it must be established that this payment was made after the court ruling . Where the debtor, having resold the item to a sub-purchaser, assigns his claim for payment to a factor, the latter cannot invoke subrogation in the rights of its member to defeat the reservation of title invoked by the original seller, which is enforceable against the insolvency procedure . Lastly, the reserved seller may not claim the price from the debtor's factor, who is subrogated to the debtor's rights, if the resale price of the goods has been paid to the factor at the time the claim is made .

The owner may also claim the price of the goods from the sub-purchaser. The seller of an item subject to a retention of title, which is resold by the debtor to a third party, may claim the part of the price still owed by the latter, which is subrogated to the item of which he has remained the owner since the resale, as long as the sub-purchaser has not paid the price to his seller . The assignment of a claim following the resale of goods by the debtor, invoked by a bank, cannot defeat the claim of the reserved seller, since the resale price is subrogated to the goods of which he remains the owner . 

By virtue of real subrogation, the original seller is entitled to reclaim his goods from the sub-purchaser, without the latter being able to raise against him the defenses he could have raised against the debtor , such as the defectiveness of the equipment delivered . When the sub-purchaser is itself subject to the insolvency procedure, the claimant's action must be considered as a personal action and not as a real action, i.e. as an action for payment, which can only be rejected in the case of claims prior to the opening court ruling . 

In accordance with Article R. 641-31 of the Commercial Code, in the event of a claim on the price of goods pursuant to Article L. 624-18, the corresponding sums paid by the sub-purchaser after the opening of the procedure are remitted to the claiming creditor by the liquidator. The liquidator is then responsible for remitting them to the claimant up to the amount of his claim. The liquidator must only remit to the claimant subrogated to the debtor's rights the amount paid to him after the opening of the procedure by the sub-purchaser or a third party subrogated to the debtor's rights against the sub-purchaser . The claim to the sale price of goods resold by the debtor must be given priority over any other claim, where it is established that the price was paid after the court ruling opening the procedure . The sums paid by the sub-purchaser after the filing of his action for revendication can only be attributed to the owner of the goods if they were paid to the debtor before the decision in favor of the claimant . 

Finally, an abandonment of the claim for the price of recovered parts does not necessarily mean abandonment of the claim for the price of all other parts .

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

Cass. com., 21 June 2015, LawLex202100003664JBJ (LJ).

Cass. com., 26 June 2001, LawLex202100003404JBJ (RJ) ; 7 April 2009, LawLex202100003663JBJ (RJ) ; 24 April 2007, LawLex202100003646JBJ (LJ) ; 2 March 2010, LawLex202100003658JBJ (LJ) ; 7 November 2018, LawLex202100003668JBJ (RJ).

Cass. com., 27 June 1989, LawLex202100003644JBJ (LJ).

Cass. com., 10 July 2001, LawLex202100003645JBJ (RJ).

Cass. com. 5 January 1999, LawLex202100003642JBJ (RJ), noting the sub-buyer's refusal to accept the bill of exchange drawn by the debtor.

Cass. com., 20 June 1989, LawLex202100001734JBJ (LJ).

Cass. com., 18 January 2011, LawLex202100001728JBJ (LJ).

Cass. com., 5 June 2007, LawLex202100003667JBJ (LJ).

Cass. com., 6 October 2009, LawLex202100003666JBJ (LJ).

Cass. com., 24 January 2018, LawLex202100001729JBJ (LJ).

Cass. com., 5 December 2018, LawLex202100001727JBJ (LJ).

Cass. com., 5 October 1993, LawLex202100003640JBJ (RJ).

Cass. com., 20 September 2005, cited above.

Cass. com., 14 June 2017, LawLex202100003641JBJ (RJ) ; 5 November 2003, LawLex202100001648JBJ (RJ).

Cass. com., 15 December 1992, LawLex202100003402JBJ (RJ).

Cass. com., 3 November 2015, LawLex202100001703JBJ (RJ).

Cass. com., 14 May 2008, LawLex202100003643JBJ (LJ).

Cass. com., 30 May 2006, LawLex202100003662JBJ (LJ).

Cass. com., 30 May 2006, cited above; 20 September 2005, LawLex202100003396JBJ (LJ).

Cass. com., 3 December 2003, LawLex202100001731JBJ (RJ).

Bankruptcy Law

862. Claiming the resale price of the property

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

862. Claiming the resale price of the property

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