1. Leasing: Judicial liquidation does not preclude the finding of the prior acquisition of a termination clause
2. The powers of the supervising judge
3. The joint guarantor can rely on the rejection of the claim pronounced in favor of their co-guarantor
4. Omission in the handwritten statement 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 preclude the finding of the prior acquisition of a termination clause
Com. November 18, 2014 (No. 13-23.997) F-PB :
By an order of October 31, 2012, a judge in summary proceedings found the acquisition of the termination clause inserted in a real estate leasing contract and ordered the lessee to pay a provisional sum against unpaid rent and set an occupancy indemnity. The lessee appealed and was placed in judicial liquidation on January 15, 2013. The Court of Appeal rejected the claim seeking a declaration that the termination clause had become effective, on the grounds that, as of the date of the commencement of the liquidation, the termination clause had not been established by a final and binding judgment.
The Commercial Chamber of the Court of Cassation overturned the ruling. According to the Court of Cassation:
"Article L. 622-21 of the French Commercial Code does not preclude an action seeking a declaration that a real estate lease agreement has been terminated by application of an automatic termination clause that took effect before the judgment commencing the lessee's judicial liquidation."
This serves as a reminder of the general rules applicable to contracts, from which the rules applicable to commercial leases deviate.
2. The powers of the supervising judge
. November 18, 2014 (No. 13-24.007) F-PB :
Two veterinarians were ordered by a summary judgment judge to pay the debtor an advance. A judgment dated May 27, 1999, overturned this decision and ordered the debtor to repay the sum received. The debtor having been placed in receivership on July 1, 1999, one of the creditors filed a claim for restitution. By order dated January 18, 2000, the supervising judge noted that proceedings were pending, the debtor having meanwhile sued the creditors for liability and damages before the trial court. On July 18, 2000, the court approved the debtor's reorganization plan, and a final judgment dated March 27, 2008, ordered the creditors to pay the debtor a certain sum as damages. The creditor requested that its claim be registered on the statement of claims. The debtor having objected, the parties were summoned before the supervising judge. The Court of Appeal held that the debtor was barred from contesting the validity of the proof of claim and dismissed its request to limit the registration of the claim on the statement of claims.
According to the Court of Cassation, the Court of Appeal's decision was justified insofar as:
"the order by which the supervising judge establishes, even if wrongly, that proceedings are pending, divests him of jurisdiction and renders inadmissible any new claim brought before him for the same claim."
3. The joint and several guarantor may rely on the rejection of the claim pronounced in favor of its co-guarantor
. November 18, 2014 (No. 13-23.976) F-PB :
The Court of Cassation held that "a joint and several guarantor may rely, once it is final, on the rejection of the guaranteed claim pronounced in the insolvency proceedings of their co-guarantor, unless it is due to a cause personal to the latter."
In this case, a company and a married couple, joint and several guarantors of a loan granted to the company, had been placed in judicial liquidation. During the proceedings, the supervising judge irrevocably rejected the bank's claim against one of the spouses. Relying on the res judicata effect of this decision, the supervising judge rejected the claim against the other spouse.
4. Omission in the handwritten statement of the guarantee agreement
. November 4, 2014 (No. 13-24.706) F-PB:
A guarantor, summoned to court to enforce a guarantee she had given, invoked the nullity of that guarantee. The Court of Appeal declared the guarantee null and void on the grounds that the handwritten statement did not contain the word "interest" and did not exactly reproduce the wording required by Article L. 341-2 of the Consumer Code.
According to the Court of Cassation, the omission only had the effect of limiting the scope of the guarantee to the principal amount of the debt without affecting its validity. Consequently, the Court quashed the judgment of the Court of Appeal.
5. The heating method as a contractual element
3rd Civil Chamber. November 19, 2014 (No. 12-27.061) FS-PB :
The landlords of premises housing a butcher shop replaced the gas heating and hot water system with an electric system following a fire in the boiler flue. The butcher sued the landlords for payment of the cost of installing a new gas boiler and for compensation for his increased electricity consumption and business losses due to the necessary work. The Court of Appeal ordered the landlords to pay a certain sum for the cost of installing a new boiler and for the increased electricity consumption. The Court of Cassation
dismissed the appeal and emphasized that the Court of Appeal had demonstrated that the change in the heating system constituted the loss of a benefit the tenant derived from the lease.
6. Consequences of the failure to adjust charges
3rd Civil Chamber. November 5, 2014 (No. 13-24.451) FS-PB :
In this ruling, the Court of Cassation held that "the failure to adjust charges under the conditions stipulated in the commercial lease renders the quarterly calls for provisional payments against charges unjustified."
In this case, the lease signed between the parties stipulated that "the lessee, by calling for a quarterly provisional payment with each installment, will reimburse, in proportion to the leased premises, a set of charges listed, and that at the close of each fiscal year, the amount of the provisions paid will be adjusted based on the closing of the annual accounts for charges."
