1. Leasing: Judicial liquidation does not preclude the finding of the prior acquisition of a resolutory clause
2. The powers of the judge-commissioner
3. The joint surety may avail himself of the rejection of the debt pronounced in favor of his co-trustee
4. Omission in the handwritten mention of the guarantee commitment
5. The heating method as a contractual element
6. Consequences attached to the absence of regularization of charges
1. Leasing: Judicial liquidation does not constitute an obstacle to the acknowledgment of the prior acquisition of a termination clause
Com. November 18, 2014 (n°13-23.997) F-PB :
By an order of October 31, 2012, a judge in chambers noted the acquisition of the termination clause inserted in a real estate finance lease contract and ordered the lessee to pay a provision for unpaid rent and set an occupancy allowance.
The lessee appealed and was put into compulsory liquidation on January 15, 2013. The Court of Appeal rejected the request for a finding of the acquisition of the termination clause on the grounds that on the day of the opening of the liquidation, the acquisition of the resolutory clause had not been established by a decision that has become final. The commercial chamber breaks the judgment.
According to the Court of Cassation: "Article L. 622-21 of the Commercial Code does not preclude the action for the purpose of establishing the resolution of a real estate finance lease contract by application of a termination clause as of right which took effect before the judgment opening the judicial liquidation of the lessee”.
This is a reminder of the regime applicable to contracts in general from which the regime applicable to commercial leases derogates.
2. The powers of the supervising judge
Com. November 18, 2014 (n°13-24.007) F-PB :
Two veterinarians were ordered by an interim relief judge to pay the debtor a provision.
A judgment of May 27, 1999 overturned this decision and ordered the debtor to return the sum received. The debtor, having been placed in receivership on July 1, 1999, one of the creditors declared his claim for restitution. By order of January 18, 2000, the judge-commissioner noted that proceedings were in progress, the debtor having in the meantime assigned the creditors for liability and damages before the trial judge. On July 18, 2000, the court decided on the debtor's continuation plan and an irrevocable judgment of March 27, 2008 condemned the creditors to pay the debtor a certain amount in damages. The creditor requested the registration of his claim on the statement of claims. The debtor having opposed it, the parties were summoned before the judge-commissioner. The Court of Appeal considers that the debtor is inadmissible to challenge the regularity of the declaration of claim and rejects his request that the registration of the claim on the statement of claims be limited. According to the Court of Cassation, the judgment of the Court of Appeal is justified insofar as:
"the order by which the supervising judge finds, even if wrongly, that a proceeding is in progress, withdraws it and returns inadmissible any new request made before him for the same claim”
3. The joint surety may rely on the rejection of the claim pronounced in favor of his co-trustee
Com. November 18, 2014 (n°13-23.976) F-PB :
The Court of Cassation considers that "the joint surety may rely, once it is final, on the rejection of the guaranteed claim pronounced in the collective proceedings of its co-trustee , unless it is due to a personal cause to this one”.
In this case, a company and two spouses, surety for a loan granted to the company had been placed in judicial liquidation.
During the proceedings, the receiver irrevocably rejected the bank's claim against one of the spouses. Retaining the res judicata of this decision, the supervising judge rejected the claim against the other spouse. 4. Omission in the handwritten mention of the guarantee commitment
Com.
November 4, 2014 (n° 13-24.706) F-PB: A guarantor assigned in execution of the commitment that it granted, invokes the nullity of this commitment.
The Court of Appeal pronounced the commitment null and void on the grounds that the handwritten mention did not contain the word “interest” and did not reproduce exactly the mention required by article L. 341-2 of the Consumer Code. According to the Court of Cassation, the only consequence of the omission is to limit the scope of the suretyship to the principal of the debt without affecting its validity.
Consequently, the Court reverses the judgment of the Court of Appeal. 5. The method of heating as a contractual element
3rd Civ. November 19, 2014 (n°12-27.061) FS-PB :
The lessors of premises in which a butcher's business operated replaced the gas heating and hot water production system with an electrical system consecutively in the event of a fire in the boiler duct.
The operator of the business sued the lessors for payment of the cost of installing a new gas boiler and for compensation for its overconsumption of electricity and its operating losses due to the work to be carried out. The Court of Appeal ordered the lessors to pay a certain amount for the cost of installing a boiler and the overconsumption of electricity. The Court of Cassation dismissed the appeal and pointed out that the Court of Appeal had demonstrated that the change in heating mode characterizes the loss of an advantage that the lessee held from the lease.
6. Consequences attached to the absence of regularization of
3rd Civ charges. November 5, 2014 (n°13-24.451) FS-PB :
In this judgment, the Court of Cassation considers that "the absence of regularization of the charges under the conditions provided for in the commercial lease renders without cause the quarterly calls for provision to be made on payment of charges”.
In this case, the lease signed between the parties provided that "the lessee, by appealing a quarterly and civil provision paid by the lessee with each term, will reimburse in proportion to the leased premises a set of charges set out and that at the closing of each financial year of charges, the amount of the provisions paid will be regularized according to the closing of the accounts of annual charges”.
