Judicial Liquidation: Sale and Distribution Contracts

Extract

[...] The latter being placed in judicial liquidation and the liquidator having been authorized by the supervising judge to transfer to another company the business assets of Belle Etoile. The company that granted the commercial lease wishes to acquire the lease right as provided for in the commercial lease. It aims to question whether the right of preference in favor of the lessor, provided for by a clause of the commercial lease, applies when the judicial liquidator, authorized by the supervising judge, transfers the business assets of the debtor. [...]

[...] However, this approval is a requirement for the conclusion of the transfer deed. It was indeed the administrator's duty to produce « all the necessary deeds for the realization of the transfer », the approval falling within the scope of the required acts when provided for in the company's statutes. The approval clause in the statutes of a company therefore applies to the transfer deed. It thus appears, as a result of this omission, a possibility for SA GOM to request the annulment of the transfer deed, on the grounds of the absence of prior approval. [...]

[...] Article 1424 of the Civil Code obliges the consent of both spouses. In addition, in the event of judicial liquidation and therefore of authorization to sell by the commissioner judge, this authorization will apply to both and will be distinct from their individual wills. Thus, it seems good to remind the wife that it is a common good, and that neither their financial difficulties nor the opening of a safeguard procedure will allow her to sell their apartment without the consent of her husband, which is indispensable. [...]

[...] In this case, the debtor wishes to have the sale annulled, invoking the sufficiency of the sale of its stocks to settle its claims. If appeals are generally admissible, case law refuses to admit this means against an order of the judicial administrator authorizing the sale by private treaty during judicial liquidation. The debtor in judicial liquidation who will make an appeal by this means, in accordance with the jurisprudence of 15 December 2015, will see his appeal declared inadmissible. It is not recommended that Mr. Gibert make this appeal. IV. [...]

[...] In accordance with article 1424 of the Civil Code « The spouses cannot, one without the other, alienate or encumber with real rights the immovable property, commercial assets and exploitations dependent on the community», the jurisprudence affirms elsewhere the irregularity of the payment made in the event of the absence of the spouse's consent in violation of article 1424 of the Civil Code (Civ. 1ere 30 October 2006). In addition, they are solidarily liable as debtors in the event of judicial liquidation ( [...]