When a debtor has failed to draw up the list provided for in the second paragraph of Article L. 622-6 of the Commercial Code or, having drawn it up, has failed to mention a creditor, the omitted creditor, who requests relief from forfeiture, is not required to establish the existence of a causal link between this omission and the lateness of his declaration of claim.
In this case, the Court of Cassation had to answer the question of whether a creditor can obtain relief from forfeiture on the sole condition that he has been omitted from the list of creditors – or, as in this case, that this list has never been filed – or must he, in addition, demonstrate that the debtor's omission was the cause of his failure to declare.
Typically, a creditor who fails to file a claim against their debtor in collective proceedings within the required time limits risks having their right unenforceable against the proceedings.
To avoid this penalty and despite exceeding the deadline, the creditor can ask the supervising judge to be relieved of the forfeiture incurred.
In this respect, the Commercial Code provides for two possible grounds for this action. The creditor may, on the one hand, demonstrate that their failure to declare is not due to their own fault and may, on the other hand, establish that their failure is due to an omission by the debtor when drawing up the list provided for in Article L. 622-6 of the Commercial Code .
In a ruling dated June 16, 2021, the Court of Cassation revisits this last ground for lifting the forfeiture and provides interesting clarifications on this notion of "omission ".
In this case, the sale plan of a debtor company under judicial reorganization was approved by a judgment dated June 15, 2015, in favor of a transferee with the option of substitution in favor of another company. The debtor company was placed into liquidation on June 24, 2015. However, by a judgment dated July 28, 2016, published in the BODACC (Official Bulletin of Civil and Commercial Announcements) on August 9, 2016, the substituted company was also placed under judicial reorganization before this procedure was converted into liquidation by a judgment dated November 7, 2016.
Finally, on November 22, 2016, the termination of the transfer plan was pronounced due to the failure to execute it.
On February 9, 2017, the liquidator of the debtor company filed a motion with the supervising judge of the insolvency proceedings of the substituted company to set aside the statute of limitations in order to file a claim. This motion was granted by both the supervising judge and the Court of Appeal, and the liquidator of the substituted company appealed to the Court of Cassation.
Indeed, for the judicial liquidator, when the voluntary nature of the omission of a claim or the failure to submit the list of creditors is not demonstrated, the creditor requesting relief from forfeiture is required to establish the existence of a causal link between said omission and the lateness of his declaration of claim.
However, according to him, the Court of Appeal merely noted that a creditor who failed to file a claim within the statutory time limit due to the debtor's failure to submit the list of claims must be relieved of the applicable time bar. In so ruling, the Court of Appeal allegedly failed to establish a causal link between the debtor's omission and the late filing of the claim. Consequently, it deprived its decision of a legal basis under Article L. 622-26 of the French Commercial Code.
The Court of Cassation did not accept this argument and rejected the appeal.
For the High Court, it follows from the first paragraph of Article L.622-26 of the Commercial Code, in its wording resulting from Ordinance No. 2014-326 of March 12, 2014, that when a debtor has failed to draw up the list provided for in the second paragraph of Article L. 622-6 of said Code or, having drawn it up, has failed to mention a creditor, the omitted creditor, who requests relief from forfeiture, is not required to establish the existence of a causal link between this omission and the lateness of his declaration of claim.
A creditor omitted from the list submitted by the debtor can therefore obtain relief from forfeiture solely on the basis of this omission. This ground thus establishes, in a way, a legal .
