Bankruptcy Law

The bodies of the insolvency procedure may give rise to personal liability in tort, in the context of the reclamation procedure, on the basis of Article 1240 of the Civil Code. 
The court-supervised liquidator is obliged to wait for the expiry of the time-limit for reclaiming a property subject to a retention of title clause of which he is aware, before proceeding with its realization, on pain of  …

Liability of the organs of the procedure

The bodies of the insolvency procedure may give rise to personal liability in tort, in the context of the reclamation procedure, on the basis of Article 1240 of the Civil Code. 

The court-supervised liquidator is obliged to wait for the expiry of the time-limit for reclaiming a property subject to a retention of title clause of which he is aware, before proceeding with its realization, on pain of incurring liability towards the reclaiming seller who has not given his agreement to the resale and to whom he must pay the balance of the price still due . A liquidator who fails to comply with Article R. 641-31, II of the Commercial Code, which requires him to remit to the claimant, up to the amount of his claim, the sums paid by the sub-purchaser after the opening of the procedure in the event of the resale of his property, incurs liability . The liquidator is also liable if, prior to the sale of an asset likely to be the subject of a restitution claim by its owner, he fails to send a formal notice to the owner, and then to deposit the sale price in order to hold it at the owner's disposal . 

In addition, it is the responsibility of the liquidator to take all precautionary measures to ensure the eventual restitution of the item at the end of the revendication procedure, failing which he will be liable to the seller . In the event of failure to protect the claimant's rights, the liquidator is required to compensate the claimant's harm to the extent of the value, at the time of the claim, of the property which remained unpaid and unreturned, and not the lower price at which it was subsequently sold on the basis of an ordinance by the bankruptcy judge . Once informed of the existence of a stock of identifiable bottles, the ownership of which is reserved, and of the claim, the court-supervised liquidator must take all appropriate measures to preserve the rights of the claimants, in particular by refraining from selling the stock as part of a disposal plan . On the other hand, a liquidator who was not informed of the existence of a retention-of-title clause either by the inventory drawn up by the debtor, or by their owner, before the end of his mission, cannot be blamed for failing to preserve the assets present in kind at the date of the court ruling .

Cass. com., 28 June 2017, LawLex202100003424JBJ (RJ).

See by analogy, Cass. com. 4 January 2000, LawLex202100001723JBJ (RJ), holding that the liquidator is liable when he sells goods subject to a retention of title held by the debtor without allocating the funds from the sale to the settlement of the claimant's claim as soon as the claim has been settled.

Cass. com., 2 June 2015, LawLex202100003432JBJ (LJ).

See by analogy, Cass. com., 4 January 2000, LawLex202100001723JBJ (RJ).

See by analogy, Cass. com., 1 December 2015, LawLex202100003437JBJ (RJ).

Cass. com., 25 October 2017, LawLex202100003425JBJ (LJ).

Cass. com., 27 September 2016, LawLex202100005232JBJ (LJ).

Bankruptcy Law

865. Liability of the organs of the procedure

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865. Liability of the organs of the procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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