Bankruptcy Law

The court must assess the state of cessation of payments on the day it rules. Consequently, in order to annul a transfer on the grounds of fraud, it cannot base its decision on the fact that the company whose shares have been transferred was unable to meet its current liabilities with its available assets a few weeks earlier, since there are chances, however slim, that its situation has improved i …

Date of judgment

The court must assess the state of cessation of payments on the day it rules. Consequently, in order to annul a transfer on the grounds of fraud, it cannot base its decision on the fact that the company whose shares have been transferred was unable to meet its current liabilities with its available assets a few weeks earlier, since there are chances, however slim, that its situation has improved in the meantime .

In turn, the court of appeal hearing a remedy against the opening judgment must assess the debtor's ability to meet its current liabilities with its available assets at the date of its own decision, and not at the date of the court's decision . The court of appeal, which must not content itself with a reference to the grounds of the opening judgment , cannot, in the absence of any justification of the debtor's current situation, declare him to be in a state of cessation of payments “at least on the date of the opening of the insolvency procedure” . Furthermore, the court of appeal may not confirm a decision to open a court-supervised liquidation procedure if, on the day of the decision, it finds that the debtor has not adopted any suspension of cash services, and that all his debts have been settled, except those he is contesting . It must also ascertain whether, on the day of the ruling, the debtor actually has a credit reserve which he claims should enable him to meet his current liabilities .

On the other hand, when the criticism of a plea concerns exclusively the provision that fixes the date of cessation of payments, and not the actual opening of the procedure, the court of appeal is not required to characterize the state of cessation of payments on the date on which it rules, but on the date it selects .

Cass. com., 5 May 2009, LawLex202100004266JBJ (RJ).

Cass. com., 23 November 2004, LawLex202100004268JBJ (RJ) ; 8 April 2015, LawLex202100004372JBJ (RJ) ; 7 November 1989, LawLex202100002076JBJ (RJ) ; 19 November 2003, LawLex202100004271JBJ (RJ).

Cass. com., 14 January 2004, LawLex202100004267JBJ (RJ).

Cass. com., 30 May 2006, LawLex202100004269JBJ (LJ).

See by analogy, Cass. com., 6 October 1992, LawLex202100002082JBJ (RJ).

Cass. com., 14 November 2000, LawLex202100002081JBJ (RJ).

Cass. com., 22 February 2017, LawLex202100004313JBJ (LJ).

Bankruptcy Law

670. Date of judgment

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Les notions juridiques connexes

670. Date of judgment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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