Bankruptcy Law

Article R. 661-1 of the Commercial Code stipulates that judgments and ordinances handed down in court-supervised liquidation cases are ipso jure enforceable on a provisional basis. However, in certain circumstances, provisional enforcement may be stopped by court.
1) Principle : ipso jure enforceabillity 
Judgments handed down in court-supervised liquidation are provisionally enforceable, notwiths …

Principle and exception

Article R. 661-1 of the Commercial Code stipulates that judgments and ordinances handed down in court-supervised liquidation cases are ipso jure enforceable on a provisional basis. However, in certain circumstances, provisional enforcement may be stopped by court.

1) Principle : ipso jure enforceabillity 

Judgments handed down in court-supervised liquidation are provisionally enforceable, notwithstanding opposition or appeal, with the exception of ordinances authorizing the sale by the trustee of a pledged item, and judgments ordering personal bankruptcy or other sanctions . Pursuant to Article R. 661-1, the judgment opening the insolvency procedure takes effect from the first hour of the day on which it is handed down. Registrations regularized on the same day are therefore prohibited . Similarly, any redundancies must be authorized by the bankruptcy judge . Furthermore, the annulment of the decision to open a court-supervised liquidation does not retroactively remove the effects of the debtor's divestiture, attached to the ipso jure provisional execution of this judgment .

In the same way as a judgment opening the main procedure, a judgment extending an insolvency procedure is enforceable ipso jure. Consequently, the legal representative appointed as liquidator cannot be held liable for acts performed in execution of his or her judicial mandate, even if the judgment has subsequently been set aside .

Lastly, in the event of an appeal against a ruling converting a receivership procedure into a judicial liquidation, the provisional execution attached to the ruling has the effect of extending the observation period until the court of appeal has adopted its ruling, so that until such time, the asset transfer operations inherent in the court-supervised liquidation are suspended, as is the time-limit for examining the closure of the procedure imposed by Article L. 643-9(1) of the Commercial Code, which is not a fixed deadline .

2) Exception : court ordinance stopping provisional execution 

The first president of the court of appeal, ruling in summary proceedings, may exceptionally adopt the provisional execution of the opening judgment when the arguments presented in support of the appeal against the opening decision appear serious . The request must necessarily be grafted onto an appeal on the merits. The summary proceedings ordinance, which must adopt the provisional execution of the court-supervised liquidation judgment opened against the debtor, suspends the ban on exercising his self-employed professional activity until the judgment on the merits confirming the procedure .

On the other hand, the court may reject an application to adopt a stay of provisional execution of a judgment converting an insolvency procedure if, in the exercise of its sovereign discretion, it considers that the arguments put forward are not serious . He may give reasons for his decision to reject on the sole grounds that the chances of reversal or annulment of the decision do not appear to be serious, without having to explain further . On the other hand, the provisional enforcement of an opening judgment must be adopted when the court has based itself on a modest claim of less than EUR 3,000 to characterize the debtor's state of cessation of payments . Furthermore, the appeal must be lodged against the opening judgment and not against the judgment rejecting the third-party objection lodged against it .

Withdrawal of the opening judgment retroactively stops the accruing of interests from the date of its pronouncement . On the other hand, a claim admitted after the opening judgment cannot be called into question by the subsequent cassation of the judgment confirming this judgment .

Cass. com., 8 July 2008, LawLex202100004459JBJ (LJ).

Cass. com., 2 October 2007, LawLex202100004466JBJ (LJ).

CA Paris, 6 December 2018, LawLex202100004512JBJ (LJ).

Cass. com., 7 June 2005, LawLex202100004471JBJ (LJ).

Cass. com., 17 October 2018, LawLex202100002210JBJ (S).

Cass. com., 30 October 2012, LawLex202100004501JBJ (LJ).

Cass. soc., 12 May 1998, LawLex202100004444JBJ (RJ).

Cass. com., 2 July 2013, LawLex202100004507JBJ (LJ).

Cass. com., 30 October 2012, LawLex202100004463JBJ (LJ).

Cass. com., 14 June 2017, LawLex202100001112JBJ (LJ).

Cass. com., 14 June 2017, LawLex202100001114JBJ (LJ).

Cass. com., 17 July 2001, LawLex202100004472JBJ (LJ).

Cass. com., 4 June 2013, LawLex202100004473JBJ (RJ).

Bankruptcy Law

693. Principle and exception

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693. Principle and exception

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Les notions juridiques connexes

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