1. Tenant's insolvency proceedings and payment of landlord's claims
2. Annulment of judicial liquidation and interruption of the statute of limitations by filing a claim
3. Erroneous statement in the notice of judgment published in the BODACC
4. Perpetual nature of the plea of nullity
5. Set-off of claims
6. Assignment of equity interests
7. Interference of a parent company in its subsidiary
8. Door-to-door sales
9. Multiple commitments and assessment of the disproportion of guarantees
1. Tenant's insolvency proceedings and payment of landlord's claims
Com. 2 December 2014 (no. 13-11.059) FS-PB:
Before being placed in receivership on 11 June 2009, the tenant of premises used as a school gave notice to its landlord for 31 July of the same year. The premises having finally been vacated on November 1 , 2009, the landlord sued the tenant for damages, including compensation for the loss suffered due to the impossibility of re-letting the premises before the start of the following school year, and for payment of the cost of the necessary repairs.
The Court of Appeal having dismissed the claims, the landlord appealed to the Court of Cassation, requesting, among other things, the application of the payment terms for debts incurred after the commencement of insolvency proceedings.
The Court of Cassation rejected the appeal. In support of its decision, the Court held on the one hand that the landlord's claim relating to the restoration work is the consideration for a service provided to the debtor during the observation period, within the meaning of the provisions of Article L. 622-17 of the Commercial Code, only if the damages which he is accused of were committed during this period and not, as the argument supports, because the premises were returned after the judgment opening the receivership proceedings. The Court further specified that, from June 11 to November 1, 2009, the landlord had been paid, in consideration of the service provided to the debtor during that period, the rent due and then an occupancy indemnity after the lease termination date of July 31, 2009. Consequently, the Court of Appeal correctly concluded that the damages claimed to compensate the landlord for the loss of opportunity to immediately re-let the premises were not in consideration of any service provided to the debtor.
2. Annulment of judicial liquidation and the interruptive effect of the declaration of claim
. January 27, 2015 (No. 13-20.463) FS-PB:
A debtor, in judicial liquidation, invoked the statute of limitations on a debt corresponding to a loan granted with a maturity date of June 30, 1989, declared during liquidation proceedings that were subsequently annulled, then admitted again on March 30, 2011, during a second judicial liquidation proceeding.
The Court of Cassation rejected the argument based on the statute of limitations on the grounds that "the decision that annuls the opening of judicial liquidation does not deprive the declaration of claim of its effect of interrupting the statute of limitations, which continues until that decision ."
3. Erroneous statement in the notice of judgment published in the BODACC
). January 27, 2015 (No. 13-24.619) FS-PB:
According to the Commercial Chamber of the Court of Cassation, while the texts do not require that the notice of the judgment opening the receivership proceedings published in the BODACC (Official Bulletin of Civil and Commercial Announcements) mention the date of cessation of payments set by that judgment, the indication of this date, when it appears in the publication, must be accurate.
Consequently, the notice, which in this case contained an error regarding the date of cessation of payments, rendering the creditor's exercise of third-party opposition at that time to challenge the date of cessation of payments pointless, could not trigger the time limit for this appeal.
4. Set-off of claims
. January 27, 2015 (No. 13-18.656) F-PB:
To reject a claim for set-off, the Court of Appeal's ruling states that there can be no set-off when the debtor's claim arises from the creditor's abusive performance of the contract. This was the case here, the judgment, which became final on this point, having specifically held that the fault giving rise to the creditor's liability resulted, in part, from the invoicing of royalties at an excessive rate, completely disproportionate to the nature and scope of the services provided.
The Court of Cassation overturned the judgment on the grounds that, in so ruling, when a claim resulting from overbilling, arising from defective performance of the contract, is related to a claim arising from the same contract, the Court of Appeal violated Articles 1134 and 1147 of the Civil Code and Article L. 621-24 of the Commercial Code, in its version prior to the Law of July 26, 2005, on the safeguarding of businesses.
5. Perpetual nature of the defense of nullity
1st Civ. January 15, 2015 (No. 13-25.512) F-PB:
The Court of Cassation reiterates here that the defense of nullity can only be invoked to defeat a claim for performance of a legal act that has not yet been performed.
6. Transfer of shares
Com. February 3, 2015 (No. 13-12.483) F-PB:
In this case, the Court of Appeal refused to grant the request for annulment of a transfer of shares on the grounds of fraud due to the existence of an asset guarantee.
The Court of Cassation overturned the judgment. Indeed, according to the Court, contractual guarantees relating to the composition of the company's assets or liabilities are in addition to the legal provisions and do not deprive the purchaser of shares, who maintains that their consent was vitiated, of the right to request the annulment of the transaction based on these provisions. Consequently, the dismissal of the request could not be justified solely by the existence of an asset guarantee.
7. Interference of a parent company in its subsidiary
Com. February 3, 2015 (No. 13-24.895) F-PB:
Due to non-payment by a contracting party, a company sued a holding company within the same group for payment. The Court of Appeal upheld the claim and ordered the holding company to pay a certain sum.
The holding company appealed this judgment to the Court of Cassation. In support of its appeal, the holding company invoked the principle of the autonomy of legal entities, according to which a company cannot be held liable for the debts of another company within the same group.
The Court of Cassation dismissed the appeal on the grounds that several factors had created an appearance likely to lead the creditor to believe that the holding company was acting in place of its subsidiary. Indeed, the Court of Appeal had noted, on the one hand, that the holding company, which held the majority of the contracting party's capital, had an email address similar to that of the debtor, the same address, and the same director. The holding company, on the other hand, had intervened several times during the pre-litigation phase to discuss the amount of the obligation, notably proposing a lower amount based on discounts granted on previous orders, and attempting to reach an amicable settlement.
8. Door-to-door sales
1st Civil Chamber, February 4, 2015 (No. 14-11.002) F-PB:
In this case, the plaintiff received a letter at his home encouraging him, through the promise of gifts, to have a new vehicle delivered. Following this correspondence, he went to the company's premises to conclude a lease agreement for a new vehicle with an option to purchase. Claiming unlawful sales practices, he sued the seller to have the contract annulled.
The Court of Cassation overturned the Court of Appeal's ruling, which had held that the lease-purchase agreement was concluded in a location intended for marketing purposes, thus denying the plaintiff the protection afforded to contracts resulting from door-to-door sales.
9. Multiple Commitments and Assessment of Disproportionate Guarantees
1st January 15, 2015 (No. 13-23.489) F-PB:
To dismiss the claim of manifest disproportion in the guarantor's commitments, the Court of Appeal's ruling held that the guarantor's debt consisted of mortgage loans.
The Court of Cassation overturned this ruling on the grounds that disproportion must be assessed in light of the guarantor's overall debt, including that resulting from guarantee commitments.
