Own right of the debtor to exercise the remedies
Com. September 8, 2015 (n°14-14.192) F-PB:
A company and its manager, sentenced to pay various sums due to the poor execution of a contract, had appealed the judgment ten days before the compulsory liquidation of the company. The liquidator, assigned in forced intervention by the respondents had said that he would not constitute on behalf of the company for lack of cash. The plaintiffs then complained to the appeal judgment to have rejected their requests against the company and its representative.
The Court of Cassation rejects the appeal. According to the Court, it follows from article L. 641-9 I of the Commercial Code only when an instance, tending to the condemnation of the debtor to the payment of a sum of money for a cause prior to the judgment of opening of his compulsory liquidation, is underway on the date of this judgment, the debtor has, in this case, the proper right to exercise the remedies provided for by the law against the request for conviction.
Nullity of the contract – Impossibility of restitution
3rd civ . July 8, 2015 (n ° 14-11.582) FS-PB:
A municipality had granted the Civil Real Estate Company (SCI) a real estate leasing contract. Taking advantage of a defect in paying the rents, the municipality obtained by summary order, the finding of the resolution of the contract to the wrongs of the SCI and the condemnation of the latter to pay it a provision to be worth on the rents expired and a monthly occupation compensation until the release of the premises. The SCI then assigned the municipality to nullity of the leasing and reimbursement of the rents paid, on the grounds of the absence of authorization issued to the mayor by the municipal council to conclude such a contract. Finally, the municipality has subsidiary for the payment of an occupation allowance for the period prior to the cancellation.
The Court of Appeal rejected the request of the municipality tending to pay an occupation compensation for the period prior to the cancellation of the municipality insofar as because of the restitution of the building, the municipality has not undergone any impoverishment.
The Court of Cassation breaks the appeal judgment and specifies that in the event that a zero contract has been executed, the parties must be delivered in the state where they were before this execution and that, when this repair is impossible, the part which benefited from a service which it cannot return, as the enjoyment of a rented property, must pay an occupation allowance.
Contractual obligation and penalty clause
2nd civ . September 3, 2015 (n ° 14-20.431) F-PB:
The sellers of a building, have, by authentic act, subscribed to the obligation, to have a planted planter removed in the public domain, under daily penalty. An execution judge nevertheless declared inadmissible the request of the purchaser tending to the liquidation of the conventional penalty. The latter having diligent, under the notarial title, a seizure-sale and two entries-attribution, to obtain payment of the agreed sum, the sellers seized an execution judge, who rejected their request for cancellation of the command of seizure-sale, of the release of the two attribution and deletion of the on-call.
To cancel the seizure-sales command and order the release of the two attribution, the trial judges have retained that no on-call measure could give rise to a forced execution measure before its liquidation, whether this penalty is pronounced by a judge or whether it is agreed between the parties in an act to ensure the execution of an obligation to do.
The Court of Cassation first recalls that the judge must give or return their exact qualification to the facts and acts disputed without stopping at the name that the parties would have proposed. Consequently, it belonged to the Court of Appeal to qualify and assess the disputed clause, which in this case, was analyzed in a penal clause.
Indivisibility
1 st civ. September 10, 2015 (n ° 14-13.658 and n ° 14-17.772) FS-PBI:
The two judgments presented here relate to similar facts. In each of the species, a bank disputes before the Court of Cassation, the decision of the Court of Appeal pronouncing the nullity of a contract of sale and installation of a wind turbine as well as the nullity of the loan contract granted in order to finance this acquisition.
The Court of Cassation rejects the two appeals. The Court, in support of its first judgment, retained that the Court of Appeal had found that the credit supply was assigned to the main contract and had been informed by the seller, and that the lender had handed over the funds borrowed in the hands of the latter, which characterized the existence of conventional indivisibility between the sales and loan contracts within the meaning of article 1218 of the Civil Code.
In the second judgment, the Court considers that the trial judges highlighted the indivisibility of the disputed contracts by stating, on the one hand, that the credit contract was the accessory of the sales contract to which it was subordinate, and on the other hand, that the borrower had attested from the execution of the main contract in order to obtain the release of the funds by the lender, who had made them available to the seller. Consequently, the resolution of the main contract carried out the annihilation of the accessory contract.
Conditions of participation in decisions in a real estate civil society
3rd civ . July 8, 2015 (n ° 13-27.248) FS-PB:
The Court of Cassation recalls that under article 1844 of the Civil Code, only partners have the right to participate in the collective decisions of the company.
Thus, the Court confirms the appeal judgment pronouncing the nullity of a general meeting in which the heirs of a deceased partner took part and during which they participated in the designation of the manager when they could not take advantage of an approval, nor the quality of partner.
Abuse of majority
3rd civ . July 8, 2015 (n ° 13-14.348) FS-PB:
The minority shareholder of an SCI assigned the majority shareholder in order to see the nullity of several decisions taken by the General Assembly. Indeed, this SCI, initially constituted to acquire and exploit a building had sold two thirds of its shares to a company. Then, according to this new distribution of the shares, a capital increase had been voted and subscribed in full by the majority shareholder, the corporate object had been modified and all of the results of two exercises had been assigned to reservations.
The Court of Appeal having concluded that the statutory rules of a reinforced majority required for the modification of the statutes had been unknown, it sanctioned these irregularities by nullity.
The decision of the trial judges is confirmed by the Court of Cassation on the grounds that the principle of unanimity, unless otherwise clauses, to modify the articles of association, posed by article 1836 of the Civil Code, falls under the imperative provisions of the title referred to in article 1844-10 of the same code.
