Bankruptcy Law

In the absence of an agreement between the liquidator and the receiver, if one has been appointed, or in the event of a dispute, Article L. 641-14-1 of the Commercial Code stipulates that the claim must be brought before the bankruptcy judge, who will rule in the light of the observations of the claimant, the debtor, the liquidator and, where applicable, the receiver. In the event of a dispute, th …

Second stage of procedure

In the absence of an agreement between the liquidator and the receiver, if one has been appointed, or in the event of a dispute, Article L. 641-14-1 of the Commercial Code stipulates that the claim must be brought before the bankruptcy judge, who will rule in the light of the observations of the claimant, the debtor, the liquidator and, where applicable, the receiver. In the event of a dispute, the reclamation of movables falls within the exclusive jurisdiction of the bankruptcy judge, and not of the interim court under ordinary law . Referral to the bankruptcy judge in the context of an action for reclamation is not equivalent to the enforcement of a compulsory enforcement measure , nor to a legal claim, so that it can be made by the agent of the owner of the property, without the latter being required to justify his authority .

The receiver's decision to continue a current contract, which does not constitute acquiescence to the claim, does not exempt the lessor from referring the matter to the bankruptcy judge . Similarly, the liquidator's response, which acknowledges that a retention-of-title clause on a stock of goods sold by a supplier is enforceable against the insolvency procedure, but expresses disagreement as to the value of the goods, does not constitute acquiescence in the claim and requires the claimant to refer the matter to the bankruptcy judge within the time-limit set by Article R. 624-13 of the Commercial Code . However, a claim for movable property sold with a retention-of-title clause during the receivership procedure does not fall within the jurisdiction of the bankruptcy judge, but of the ordinary law court, when the claimant asserts a right of ownership arising after the opening of the insolvency procedure .  

In accordance with Article R. 624-13(2) of the Commercial Code, if the claimant fails to respond within one month of receiving the request, he must, on pain of being out of time, refer the matter to the bankruptcy judge within a further month of the expiry of the deadline for response. This deadline may be extended to the next working day if it falls on a Sunday . However, owners living in overseas territories or abroad cannot take advantage of the extended deadline provided for in Article 643 of the Code of Civil Procedure . Pursuant to Article R. 624-13, the seller who, in the absence of the liquidator's acceptance to his claim within the one-month time-limit, seizes the bankruptcy judge after the expiry of the one-month time-limit available to him, must be declared foreclosed . The foreclosure resulting from failure to refer the matter to the bankruptcy judge within the legal time-limit is likely to apply in the context of the price reclamation action brought by the seller against the factor . On the other hand, a seller who is the beneficiary of a retention-of-title clause and who has submitted his claim within the prescribed time-limit, and who has been informed of his acquiescence within the time-limit set for bringing the matter before the bankruptcy judge, cannot invoke the foreclosure attached to failure to bring the matter before the bankruptcy judge .

The matter may only be referred to the bankruptcy judge by the claimant, the debtor or the liquidator, to the exclusion of any other person, such as the debtor's factor . In the absence of the receiver's agreement, the bankruptcy judge may rule on the claim, even if it has been made against a third party . On the other hand, where the lessor's right to obtain restitution of the asset under the insolvency procedure has been definitively acquired, the bankruptcy judge is not competent to order the apprehension of the asset in the hands of a third party holder, since this right is no longer in question .

Lastly, a claim before the bankruptcy judge is inadmissible if it has not been preceded by a request to the liquidator . On the other hand, even in the absence of a prior request for restitution, the bankruptcy judge may be seized by the liquidator . Before making a decision, the bankruptcy judge will hear the observations of the interested parties .

Cass. com., 9 July 1991, LawLex200500006974JBJ (RJ).

Cass. com., 24 March 2004, LawLex202100001662JBJ (RJ).

Cass. com., 7 February 2006, LawLex202100001671JBJ (LJ).

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

Cass. com., 12 April 2005, LawLex202100003395JBJ (RJ).

Cass. com., 21 November 2018, LawLex202100003439JBJ (LJ).

See by analogy, Cass. com., 2 October 2001, LawLex202100001667JBJ (RJ).

Cass. com., 5 November 2003, LawLex202100003399JBJ (LJ) ; 6 March 2001, LawLex202100001669JBJ (LJ).

Cass. com., 12 January 2016, LawLex202100001699JBJ (S).

Applicable to the court-supervised liquidation procedure by reference to art. R. 641-31 C. com. For an application, see Cass. com. 3 May 2016, LawLex202100001700JBJ (RJ).

Cass. com., 26 October 2022, LawLex202200009842JBJ (LJ).

Cass. com., 11 October 2016, LawLex202100003401JBJ (LJ).

Cass. com., 28 September 2004, LawLex202100003391JBJ (LJ).

See by analogy, Cass. com., 3 April 2001, LawLex202100003301JBJ (RJ).

Cass. com., 15 March 2005, LawLex202100003394JBJ (LJ).

Bankruptcy Law

858. Second stage of procedure

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858. Second stage of procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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