Insolvency current contracts: refusal ends them, performed party a creditor

A contrat en cours was concluded before the jugement d'ouverture, is being performed that dayService Public, and is useful to the activityService Public — franchise, location-gérance, vehicle lease, insurance or crédit-bail, for example. The opening judgment does not end them automaticallyService Public: they continue on the same termsService Public, and resolution clauses triggered by the opening are prohibitedService Public. A supplier must perform even after a pre-opening defaultService Public. A contract continued through the période d'observation survives it under a redressement planService Public.

In sauvegarde or redressement judiciaire, the court-appointed administrateur judiciaire, where one is appointed, alone holds the faculty to require continuationService Public. Where the court appoints no administrateur judiciaire, the représentant légal of the business — the gérant of a SARL or the dirigeant of a SAS, for example — decides to continue the contracts useful to maintaining the activityService Public, with the agreement of the mandataire judiciaire; where a disagreement over continuation appears, the juge-commissaire is seized by the mandataire judiciaire, the business in difficulty or the co-contractor. Whoever decides must verify funding — the immediate and foreseeable meansService Public. Payment is cash, though time to pay may be obtainedService Public; where the continued contract is performed or paid in instalments over time — a franchise or equipment-lease contract, for example — the administrator must end it as soon as it appears to him that he will not hold the funds needed to pay the next instalment. Cash payment is not required in sauvegardeService Public.

In liquidation, the liquidateur — or the administrateur where the court appointed one with provisional continuation — may require performanceService Public. The liquidator verifies funding from forecast documents such as a payment scheduleService Public. Cash payment applies, subject to agreed time to payLegifrance, and the liquidator ends contracts whose next instalment looks unfundableService Public.

Current contracts may be ended on the following grounds. First, decision of the administrator or liquidator not to continue the contractService Public: in sauvegarde and redressement without an administrator, the dirigeant decides to stop or continueService Public; in liquidation, where the contract still requires performance in kind by the business, such as maintenance, the liquidator must apply to the juge-commissaire rather than end it aloneService Public. Second, the co-contractor — supplier or commercial partner — may address a mise en demeure to the administrator or liquidator asking whether the contract is continued; the administrator or liquidator has one month to replyService Public, and the contract is automatically ended in two cases: either the mise en demeure went unanswered for more than a month, or the administrateur judiciaire, liquidator or représentant légal answered within the month that the contract is not continued. Third, a continued contract ends where the business cannot pay an instalment after continuation was chosenService Public — but that termination is not automatic: the juge-commissaire records it. Fourth, at the administrator's request the juge-commissaire orders termination where needed for sauvegarde or redressement without excessively harming the co-contractorService Public — ending a bail commercial to recover premises or cutting a distributor from a network must be justified — and fixes its dateService Public; without an administrator, the head of the business appliesService Public. In liquidation, termination is ordered at the liquidator's request only where the contract still requires performance in kind by the distressed business — maintenance, for exampleService Public — after the judge checks necessity and absence of excessive harmService Public. Where the business already performed and only payment remains, the co-contractor becomes a simple creditor of the proceedingsService Public and must declare the claim to the passifService Public.

Legal basis: Code de commerce, article L622-13 (contrats en cours en sauvegarde), article L627-2 (absence d'administrateur judiciaire), article L631-14 (contrats en cours en redressement judiciaire) and article L641-11-1 (contrats en cours en liquidation judiciaire).