- Companies in difficulty
1. Extension of procedure – Characterization of abnormal financial relations
2. Declaration of claim – calculation of interest
3. Office of the judge in matters of dispute of claim
4. Appeal against the admission of a claim
5. Action for compensation of employees
6 Liquidation and action paulienne – determination of the competent judge
7. Scope of the action for insufficiency of assets
8. Dismissal procedure of the liquidator
9. Safeguard and suretyship
- Contracts
1. Significant imbalance
2. Guarantee: handwritten notes
3. Formalism: mention of the duration of the commitment
4. Assessment of the disproportion of the guarantee
5. Validity of the trial period in the commercial agent contract
6. Sale of business
- Corporate law
1. Effect of the resignation of the corporate officer
2. Commitment entered into by the manager
- COMPANIES IN DIFFICULTY
1. Extension of procedure – Characterization of abnormal financial relations
Com.
June 16, 2015 (n°14-10.187) F-PB: The liquidator of a SARL had assigned an SCI with a view to seeing him extend the liquidation of the SARL.
The liquidator's request having been accepted by the Court of Appeal, the SCI appealed to the Court of Cassation. The Court of Cassation dismissed the appeal.
According to the Court, in order to characterize abnormal financial relations constituting a confusion of assets, the trial judges do not have to determine whether these have increased, to the detriment of its creditors, the liabilities of the debtor subject to the collective proceedings. whose extension is requested. 2. Declaration of claim – calculation of interest
Com.
May 5, 2015 (n°14-13.213) FD: Article R. 622-23 of the Commercial Code only requires an indication of the methods for calculating interest whose rate has not been fixed if their amount cannot be calculated on the day of the declaration of the claim.
Thus, neither the declaration including the amount, already calculated, of the interest to be due, nor the admission order of the judge-commissioner, must provide for the methods of calculation of the interest.
3. Office of the judge in disputes of claims
Com.
June 2, 2015 (n°14-10.391) F-PB: A bank had contested before the Court of Cassation the rejection of its claim, insufficiently justified, since the account statement only contained the debit line.
According to the Court of Cassation, when the debtor or the liquidator disputes the declaration of claim by invoking the absence or insufficiency of the justifications produced in support thereof, it is up to the creditor to pay in the proceedings, if necessary , additional documents without the Court of Appeal being required to invite him to do so.
4. Appeal against the admission of a claim
Com.
May 19, 2015 (No. 14-14.395) F-PB: A bank's claim had been challenged by the judicial representative before being accepted by the judge-commissioner.
The debtor then appealed against the decision and claimed that the clause in the loan agreement relating to interest was cancelled. This request was then declared inadmissible because it had not been submitted to the judge-commissioner. According to the Court of Cassation, the debtor in receivership can exercise an appeal against the decision of the judge-commissioner ruling on the claim he has contested, regardless of the subject of this dispute.
The appeal decision is therefore quashed. 5. Compensation action for employees
Com.
June 2, 2015 (n° 13-24.714) FS-PBRI: Employees made redundant during a disposal plan intervened voluntarily in proceedings initiated by the auditors for the execution of the company's plan against a bank with a view to having its liability recognized for granting ruinous loans.
To declare inadmissible the voluntary intervention of the dismissed employees in compensation for damages resulting from the loss of their employment, the judgment had held that the damages alleged by them were inherent in the collective proceedings, of which they were the direct consequence, and that they were suffered indiscriminately and collectively by all the creditors.
The Court of Cassation overturns the judgment on the grounds that the action for compensation for the damages invoked by the dismissed employees is unrelated to the protection and reconstitution of the common pledge of the creditors and does not come under the monopoly of the enforcement officer plan.
6. Liquidation and action paulienne – determination of the competent judge
Com.
June 16, 2015 (14-13.970) F-PB: The exclusive jurisdiction of the insolvency court, provided for by article R. 662-3 of the commercial code, concerns only disputes arising from this procedure or on which it exercises legal influence.
This is not the case with the Paulian action, distinct from the action for annulment of acts performed during the suspect period.
It is therefore right that in this case, the Court of Appeal dismissed the jurisdiction of the Commercial Court of Antibes, place of opening of the collective proceedings, in favor of that of the Commercial Court of Paris , in the jurisdiction of which the headquarters of the defendant company is located. 7. Area of action for insufficiency of assets
Com.
June 30, 2015 (n°14-15.984) F-PB: In this judgment, the Court of Cassation recalls that the action for liability for insufficient assets provided for by Article L. 651-2 of the Commercial Code cannot be brought by the liquidator only against the de jure or de facto managers of a private law legal person.
Consequently, article L.651-2 of the Commercial Code is not applicable when the judicial liquidation concerns a craftsman practicing on an individual basis and not a legal person.
8. Dismissal procedure of the liquidator
Com.
July 7, 2015 (n°14-13.195) FS-PB: The amicable liquidation of a company and the appointment of a liquidator had been decided during a general meeting.
The liquidator, failing to draw up and present the accounts, was sued for dismissal by the minority shareholders. Their request was declared inadmissible on the grounds that it follows from the combined application of the provisions of Articles L. 237-25, paragraph 4, and L. 238-2 of the aforementioned code that the liquidator cannot be dismissed, for non- compliance with the obligations imposed on him by article L. 237-25, without the judge in chambers having been previously asked to order him under penalty to fulfill these same obligations.
The judgment is quashed by the Court of Cassation insofar as the admissibility of the liquidator's request for revocation made on the basis of Article L. 237-25 of the Commercial Code is not subject to prior referral , for the purposes of an injunction, of the president of the court ruling in summary proceedings pursuant to article L. 238-2 of the same code.
9. Safeguard and guarantee
Com.
June 2, 2015 (No. 14-10.673) FS-PB: The directors of a company had stood surety for all of the company's commitments to a bank.
The company had been the subject of a safeguard procedure and the bank had declared its claim and then had been authorized to register provisional judicial mortgages on property belonging to the sureties. The bank then assigned the guarantors, who were condemned to the joint payment of certain sums which would become due as and when the deadlines of the safeguard plan. The Court of Cassation upheld the judgment.
According to the Court, the creditor is entitled, pursuant to Articles L. 622-28 and R. 622-26 of the Commercial Code, to register on the property of the surety of the principal debtor subject to a safeguard procedure a provisional judicial mortgage and, to validate this precautionary measure, is required to assign the surety in order to obtain against it an enforceable title covering all the sums due. However, the forced execution of the latter cannot be implemented as long as the backup plan is respected.
- CONTRACTS
1. Significant Imbalance
Com.
May 27, 2015 (n°14-11.387) F-PB: The Court of Cassation once again ruled on the question of the balance of the clauses contained in the contracts between a central purchasing body and its suppliers and articulates its decision around several points.
First of all, the Court of Cassation characterizes the supplier's bid according to two elements.
On the one hand, the Court notes that the disputed clauses were inserted in all the contracts signed by the suppliers, who did not have the real power to negotiate them and notes on the other hand, that the suppliers could not take the risk to be dereferenced by the purchasing group. The Court then held that there was a significant imbalance resulting from the general conditions of purchase and the terms of their acceptance.
In this respect, the Court notes several types of clauses (distortion of payment deadlines, automatic exclusion of discounts for early payment of rebates and services and the costs inherent in the destruction by consumers of products and/or their packaging) imposing on suppliers obligations without compensation, which, because of their systematic nature and imposed by the purchasing group, characterize an imbalance of obligations to the detriment of the supplier. Finally, the Court of Cassation rules on the basis of the penalty clauses.
According to the purchasing group, a penalty clause can only be sanctioned on the basis of article 1152 of the Civil Code. The Court of Cassation rejects this argument and specifies that the provisions of Article 1152 of the Civil Code do not preclude the application of Article L. 442-6 I 2° of the Commercial Code to a penalty clause, as soon as when the conditions are met. 2. Guarantee: handwritten mentions
1 st Civ.
July 9, 2015 (n°14-21.051) F-PB: A bank lodged an appeal against the appeal judgment considering that the guarantor, a natural person, illiterate, who was not the writer of the handwritten notes on the he act of surety that the bank had had written could not stand surety for a company according to a private deed.
The Court of Cassation rejected the appeal against this decision on the grounds that a natural person who is unable to precede his signature with the handwritten information required by Articles L. 341-2 and L. 341-3 of the Code of consumption intended to ensure its protection and informed consent, can only validly commit itself by notarial deed as surety towards a professional creditor.
3. Formalism: mention of the duration of the
1 st Civ engagement.
July 9, 2015 (n° 14-24.287) F-PB: The Court of Appeal pronounced the nullity of surety commitments insofar as the duration of the surety commitment had to be clearly specified in the handwritten note without that it is necessary to refer to the printed clauses of the deed.
According to the Court of Appeal, the imprecision of this mention affected the understanding of the duration of the surety commitments and consequently their validity even if the duration of the guaranteed transaction, in this case eighty-four months, was indicated on the first page of the surety bonds. The Court of Cassation confirmed the decision of the Court of Appeal on the grounds that if the provisions of Article L. 341-2 of the Consumer Code do not specify how the duration of the guarantee commitment must be expressed in the handwritten statement, the fact remains that, as this is an essential element allowing the guarantor to measure the exact scope of his commitment, this statement had to be expressed without it being necessary to refer to the printed clauses of the deed.
4. Assessment of the disproportion of the guarantee
1 st Civ.
June 3, 2015 (No. 14-13.126; 14-17.203) FS-PB: The Court of Appeal had considered that the suretyship was not manifestly disproportionate to the surety's income insofar as his tax assessment did not take not taking into account the expected income from the investment made by the guaranteed company, this was not significant.
The first civil chamber of the Court of Cassation adopts the position of the commercial chamber on this issue and reverses the judgment on the grounds that the proportionality of the commitment of the surety cannot be assessed with regard to the expected income from the operation. guarantee.
5. Validity of the trial period in the commercial agent contract
Com.
June 23, 2015 (n°14-17.894) F-PB: A company challenged before the Court of Cassation its order to pay compensation for termination of contract to a commercial agent when it had terminated the contract during the trial period stipulated in the contract. Indeed, the Court of Appeal had considered: " that assuming that the stipulation of a trial period in such a contract is not in itself unlawful, it cannot have the effect of depriving the commercial agent of his right to compensation ".
The Court of Cassation breaks on the grounds that the status of commercial agents, which assumes for its application that the agreement is definitively concluded, does not prohibit a trial period.
1 st goodwill .
July 9, 2015 (1n°14-17.051) F-PB: The plaintiff intended to see the nullity of the mandate she had concluded at her home in order to seek a buyer for her business.
To this end, she claimed to benefit from the protective provisions relating to door-to-door selling and intended to challenge the validity of the mandate on the grounds that the mandate lacked the detachable withdrawal form provided for by law under penalty of nullity of the contract and that in any event the mandatary should not have taken any action before the expiry of the seven-day period following the conclusion of the mandate. According to the Court of Cassation, for a trader, the sale of his goodwill is directly related to his activity, so that the operation is excluded from the scope of application of article L. 121-22 of the Code of consumption, in its wording prior to law n° 2014-344 of March 17, 2014.
- COMPANIES _ _ _ _
1. Effect of the resignation of the corporate officer
Com.
May 12, 2015 (n° 14-12.483) F-PB: The president of a simplified joint-stock company had resigned the day of receipt of a summons to an interview before the president of the commercial court.
The court then, on an ex officio referral, opened judicial liquidation proceedings against the company. The former president, who contested the date chosen for the cessation of payments, had then filed a third party opposition to this judgment. The Court of Appeal had declared the third party opposition inadmissible.
According to the Court of Appeal, the former chairman was not a third party to the procedure insofar as his resignation had not been the subject of any legal publicity formality and therefore remained, in the company's reports with third parties, including the commercial court, its legal representative on the date of the opening judgment. On the contrary, the Court of Cassation held that, since the duties of corporate officer had come to an end as a result of his resignation, it being immaterial that this had not been the subject of legal publicity measures, the result was that could not appear as legal representative of the company in the proceedings subsequently brought against it before the commercial court.
2. Commitment entered into by the manager
Com.
May 12, 2015 (n°13-28.504) F-PB: Would it be established, the contrariety to the corporate interest of the security subscribed by a limited liability company in guarantee of the debt of a third party is not, by itself, a cause of nullity of the commitment.
