1. Insolvency proceedings of the lessee and payment of debts of the lessor
2. Cancellation of court-ordered liquidation and interruptive effect of the declaration of debt
3. Erroneous mention in the notice of the judgment published in BODACC
4. Perpetual nature of the exception of nullity
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of debts 6. Assignment of social rights
7. Interference of a parent company in its subsidiary
8. Door-to-door canvassing
9. Plurality of commitments and assessment of the disproportion of guarantees
1. Insolvency proceedings of the lessee and payment of debts of the lessor
Com.
December 2, 2014 (No. 13-11.059) FS-PB: Before being placed in receivership, on June 11, 2009, the lessee of premises used as a school gave notice to its lessor for July 31 of the same year. The premises having finally been vacated on November 1 , 2009, the lessor sued the lessee for compensation in particular for the damage suffered as a result of the impossibility of re-renting the premises before the start of the following school year and for payment of the cost of the work. of rehabilitation.
The Court of Appeal having declared the claims inadmissible, the lessor appealed in cassation, claiming in particular the application of the terms of payment of claims arising after the opening of the collective procedure.
The Court of Cassation dismissed the appeal.
In support of its decision, the Court held on the one hand that the lessor's claim relating to the restoration work is not consideration for a service provided to the debtor during the observation period, within the meaning of provisions of Article L. 622-17 of the Commercial Code, only if the damage for which he is accused was committed during this period and not, as the plea argues, because the premises would have been returned after the judgment of initiation of the receivership proceedings. The Court also specified that the lessor had, from June 11 to November 1, 2009, been paid, in return for the service provided to the debtor during this period, the rent due and then an occupancy allowance after the termination of the lease set for July 31, 2009, as a result, the Court of Appeal inferred from this exactly that the damages requested to compensate it for the loss resulting from the loss of the chance to be able to immediately re-let the premises had not for consideration a service provided to the debtor. 2. Cancellation of court-ordered liquidation and interruptive effect of the declaration of debt
Com.
January 27, 2015 (n° 13-20.463) FS-PB: A debtor, in compulsory liquidation, invoked the prescription of a debt corresponding to a loan granted with a maturity date of June 30, 1989, declared during a liquidation procedure having was subsequently annulled, then admitted again on March 30, 2011 during a second judicial liquidation procedure.
The Court of Cassation rejected the plea based on the prescription of the claim on the grounds " that the decision which annuls the opening of a judicial liquidation does not deprive the declaration of claim of its interrupting effect of prescription, which extends until to this decision .
3. Erroneous statement in the notice of judgment published in BODACC
Com.
January 27, 2015 (n° 13-24.619) FS-PB: According to the commercial chamber of the Court of Cassation, if it does not follow from the texts that the opinion of the judgment opening the receivership procedure inserted in the BODACC must mention the date of cessation of payments that this judgment fixes, the indication of this date, when it appears in the insertion, must be exact.
Consequently, the notice which in this case included an error on the date of cessation of payments, which made it irrelevant, the exercise at that time of the third party opposition by the creditor to criticize the date of cessation of payments , had not been able to cause the time limit for this appeal to run.
4. Settlement of claims
Com.
January 27, 2015 (n° 13-18.656) F-PB: To reject a request for compensation, the judgment of the Court of Appeal states that there can be no compensation when the debtor's claim finds its cause in improper performance of the contract by his creditor.
Such was the case in this case, the judgment, which has become final on this point, having specifically held that the fault which engaged the liability of the creditor resulted in part from the invoicing of royalties at an excessive rate, without any adequacy to the nature and the importance of the services provided. The Court of Cassation overturned the judgment on the grounds that by so ruling, while a debt resulting from over-invoicing, arising from defective performance of the contract, is connected with a debt arising from the same contract, the court of he appeal violated 1134 and 1147 of the Civil Code and L. 621-24 of the Commercial Code, in its wording prior to the law of July 26, 2005 on safeguarding companies.
5. Perpetual character of the exception of nullity
1 st Civ.
January 15, 2015 (n° 13-25.512) F-PB: The Court of Cassation recalls here that the exception of nullity can only be invoked to defeat the request for execution of a legal act which has not yet been executed.
6. Assignment of corporate rights
Com.
February 3, 2015 (n° 13-12.483) F-PB: In this case, the Court of Appeal refused to grant the request for nullity of an assignment of social rights for fraud due to the existence of an asset guarantee.
The Court of Cassation quashed the judgment.
Indeed, according to the Court, the contractual guarantees relating to the consistency of the company's assets or liabilities, are in addition to the legal provisions and do not deprive the purchaser of company rights, who maintains that his consent has been vitiated, from the right to request the annulment of the act on the basis of these provisions. Consequently, the rejection of the application could not be justified by the sole finding of the existence of a guarantee of assets. 7. Interference by a parent company in its subsidiary
Com.
February 3, 2015 (No. 13-24.895) F-PB: In the absence of payment by a co-contracting party, a company sued a holding company of the same group for payment.
The Court of Appeal granted this request and condemned the holding company to pay a certain sum. The holding company challenged this conviction before the Court of Cassation.
In support of its appeal, the holding company relied on the principle of the autonomy of the legal person under which a company cannot be held liable for the debts of another company in the same group. The Court of Cassation dismissed the appeal on the grounds that several elements had been such as to create an appearance capable of making the creditor believe that the holding company was replacing its subsidiary.
Indeed, the Court of Appeal had, on the one hand, held that the holding company, which held the majority of the co-contracting party's capital, had an electronic address similar to that of the debtor, the same domicile and the same manager as the latter. The holding company, on the other hand, had intervened at the pre-litigation stage, on several occasions, to discuss the amount of the obligation, in particular by proposing a lower amount taken from discounts granted on the occasion of previous orders, and to try to obtain a amicable settlement. 8. Doorstep canvassing
1 st Civ.
February 4, 2015 (No. 14-11.002) F-PB: In this case, the plaintiff had received a letter at his home encouraging him, through gifts, to have a new vehicle delivered.
Following this correspondence, he went to the company's premises to conclude a rental contract for a new vehicle with an option to buy. Invoking irregular canvassing, he sued the seller for cancellation of the contract. The Court of Cassation overturned the judgment of the Court of Appeal which considered that the rental contract with option to purchase was concluded in a place intended for marketing, which did not allow the plaintiff to benefit from the protection granted to the conclusion of a contract resulting from door-to-door selling.
9. Plurality of commitment and appreciation of the disproportion of guarantees
1 st Civ.
January 15, 2015 (No. 13-23.489) F-PB: To rule out the manifest disproportion of the guarantor's commitments, the judgment of the Court of Appeal held that the latter's indebtedness consists of mortgages.
The Court of Cassation overturned the judgment on the grounds that the disproportion must be assessed with regard to the overall indebtedness of the surety, including that resulting from surety commitments.
