A creditor cannot bring a claim alone against the bank of their debtor in compulsory liquidation (liquidation judiciaire) where the damage alleged is merely a fraction of the collective liabilities. The liquidator alone has standing (qualité pour agir) to act in the name of and in the collective interest of the creditors, under Article L. 641-4 of the French Commercial Code. Claims seeking to restore the creditors' common pledge (gage commun des créanciers) fall within the liquidator's monopoly.
Key points
- The official liquidator (liquidateur judiciaire) alone has standing to act in the name of and in the collective interest of the creditors, under Article L. 641-4 of the French Commercial Code.
- All claims seeking to protect and restore the creditors' common pledge fall within that monopoly.
- Damage arising from a fault which contributed to the debtor's cessation of payments is collective damage, which only the liquidator may seek to have compensated.
- A creditor who claims from a third party the very sums they filed as a claim in the proceedings is not defending a personal interest distinct from that of the other creditors.
- An individual claim against a third party requires personal damage, distinct from that suffered by the creditors as a whole.
Why the claim against the banks failed
The commercial chamber rejects the appeals: the investors could not bring a claim alone against the banks holding their debtor's accounts (Com., 10 June 2026, No. 24-18.425). Private individuals had invested funds in a product consisting in acquiring undivided shares in collections of ancient manuscripts. The company marketing that product held accounts with several banks. It was placed in judicial reorganisation (redressement judiciaire) on 16 February 2015, then in compulsory liquidation on 5 August 2015.
The investors filed their claims in the insolvency proceedings. They then brought liability proceedings against the banks. They alleged that the banks had breached their duties of vigilance and had contravened various provisions of the French Monetary and Financial Code. In their view, those failings had given the company the means to organise its fraud. The decision under appeal (CA Paris, 24 April 2024, No. 23/06465) had declared their claims inadmissible for lack of standing.
The basis relied on is Article L. 641-4 of the French Commercial Code: the liquidator appointed by the court alone has standing to act in the name of and in the collective interest of the creditors. The decision then sets out, in general terms, the criterion which governs the outcome (free translation).
Claims seeking to protect and restore the creditors' common pledge thus fall within the liquidator's monopoly.
The lower court judges had noted two sets of factors. The investors alleged that the banks had failed to put a stop to the fraud and had given it the means to develop. They argued that the fraud had reduced the company's assets or increased its liabilities. The sums claimed corresponded to those filed in the insolvency proceedings and arose from the failure to pay under contracts concluded before the cessation of payments.
The commercial chamber infers from this that the investors were seeking compensation for a fraction of the collective liabilities, the discharge of which is secured by the creditors' common pledge. Only the liquidator can restore that pledge. The complaint based on the necessarily personal character of non-pecuniary loss did not lead to a different outcome.
Bringing a claim against the bank of a debtor in liquidation
A creditor who has filed a claim cannot claim the same sums from a third party by way of a personal action. The outcome does not depend on the label given to the claim. A claim in tortious liability directed against a bank falls within the liquidator's monopoly where it in fact seeks to restore the common pledge. The court looks at the damage for which compensation is sought, and not merely at the provision relied on.
One of the factors taken into account is the identity of the amounts. The investors claimed from the banks the sums they had filed as claims against their debtor. Those sums arose from the failure to pay under contracts concluded before the cessation of payments. The damage alleged therefore merged with the loss suffered by all the creditors of the defaulting company.
An individual claim remains conceivable for damage that is personal and distinct from that of the body of creditors. The decision does not map out its boundaries. It sets the criterion: a creditor seeking compensation for a fraction of the collective liabilities is acting on ground reserved to the liquidator. The banks' liability was not, for its part, examined on the merits.
The scope of the official liquidator's monopoly
The decision confirms the liquidator's monopoly and characterises as collective the damage arising from a fault which contributed to the cessation of payments. That characterisation governs the admissibility of individual claims directed against a third party. It applies, as the case law stands at 10 June 2026, on the general terms adopted by the commercial chamber.
Damage resulting from a fault which contributed to the cessation of payments is consequently collective damage, for which only the liquidator may seek compensation.
The court of appeal had added that those provisions are a matter of public policy and that any party may raise that inadmissibility. That analysis, specific to the lower courts, is instructive in practice: a third party sued does not wait for the liquidator to intervene before relying on it before the court hearing the case.
The limitation period (prescription) falls outside the scope of the decision. The court of appeal had held, on separate reasoning, that the claim was out of time. The Cour de cassation (France's highest civil court) sets that reasoning aside as superfluous and therefore does not rule on when the period starts to run. The debate remains open for creditors in a comparable situation.
What should a creditor who is the victim of fraud do?
Before suing a third party, a creditor must check that the damage alleged does not merge with that of the body of creditors. The simplest comparison concerns the amounts. If the sums claimed from the third party overlap with those filed as claims in the proceedings, the individual claim runs up against the liquidator's monopoly.
The drafting of the claim is not enough to remove that obstacle. Relying on a bank's tortious liability, rather than on the contract concluded with the debtor, does not change the nature of the damage compensated. A creditor is better advised to describe damage of their own, independent of the increase in the debtor's liabilities or the reduction in the debtor's assets.
The liquidator remains the point of contact for collective damage. A creditor may set out in writing the facts alleged against third parties and the evidence available to them. The time devoted to those steps is not immaterial. Article 2224 of the French Civil Code, relied on in this dispute, sets a five-year period running from the day on which the holder of the right knew or ought to have known the facts enabling them to exercise it.
Checks before suing a debtor's bank
- Compare the sums claimed from the third party with the claim filed in the proceedings: their identity signals collective damage.
- Identify what, in the damage suffered, does not arise from the debtor's failure to pay alone.
- Refer the matter to the liquidator in writing where the facts alleged against the third party may have reduced the assets or increased the liabilities.
- Do not delay taking steps, since the five-year period under Article 2224 of the French Civil Code runs from the day on which the facts enabling a claim to be brought are known or ought to have been known.
Frequently Asked Questions
Can a creditor sue the bank of a debtor placed in compulsory liquidation?
No, where the damage alleged merges with that of the creditors as a whole. The liquidator alone has standing to act in the name of and in the collective interest of the creditors, and claims seeking to restore the common pledge fall within that monopoly. In the decision discussed, investors claimed from the banks holding their debtor's accounts the sums they had filed in the proceedings: their claim was barred. A claim remains conceivable for personal and distinct damage.
Does a fraud victim's non-pecuniary loss escape the liquidator's monopoly?
The answer depends on whether that non-pecuniary loss attaches to the collective damage. The investors argued that the distress caused by the loss of their savings was by nature personal damage. That argument did not succeed before the commercial chamber, which rejected the appeals in their entirety. Non-pecuniary loss presented as the mere consequence of the debtor's failure to pay does not appear as an interest distinct from that of the other creditors.
Does filing a claim in insolvency proceedings prevent action against a third party?
Filing a claim does not, in itself, bar any action. The obstacle lies in the content of the claim. In the case decided, the sums claimed from the banks matched those filed in the insolvency proceedings and arose from the failure to pay under contracts concluded before the cessation of payments. That identity revealed collective damage. A creditor who proves damage of their own, unconnected with the discharge of the liabilities, stands on different ground.
What can be done when the liquidator brings no claim against liable third parties?
A creditor is well advised to write to the liquidator, setting out the facts alleged against the third party and the evidence available. In principle, inaction by the officer entrusted with the collective interest does not turn collective damage into individual damage. The creditor does, however, retain the option of acting for damage of their own. Documenting that damage, its causes and its extent early remains the most useful step.
How can damage distinct from that of the other creditors be shown?
The demonstration rests on the origin of the damage, not on its amount. Damage arising solely from the debtor's failure to pay is shared by all the creditors. Distinct damage presupposes an act directed at the claimant themselves, for example misleading information which determined their commitment. Documents contemporaneous with the transaction, correspondence, papers handed over and subscription terms provide the support for that demonstration.