Restitution claims in insolvency: only the juge-commissaire decides

Where a contract concluded before the opening of insolvency proceedings is subject to rescission (résolution) after that opening, the restitution claim cannot be entered in the schedule of liabilities by the lower court judge: its admission falls within the exclusive jurisdiction of the juge-commissaire (judge overseeing insolvency proceedings). Nor does such a claim benefit from the priority treatment reserved for claims arising for the purposes of the proceedings, the commercial chamber states.

The essentials

• Rescission, granted after the opening of insolvency proceedings, of a contract concluded before that opening gives rise to a restitution claim that is not paid in priority.
• That absence of priority treatment applies where the non-performance sanctioned concerns an obligation other than an obligation to pay a sum of money.
• Only the juge-commissaire may admit that restitution claim to the schedule of liabilities of the insolvency proceedings.
• The lower court judge may grant rescission and determine the amount of the restitution; it cannot fix that claim in the schedule of liabilities.
• The creditor of the restitution must file a claim if it is to hope for payment in the insolvency proceedings.

Rescission of a sale and restitution claim in the schedule of liabilities

A lower court judge who grants rescission of a contract cannot enter the resulting restitution claim in the schedule of liabilities of the insolvency proceedings. The commercial chamber so holds in partially quashing, without remittal, the decision that had fixed that claim in the schedule of liabilities of a judicial reorganisation (redressement judiciaire) (Com., 1 July 2026, No. 24-22.541). The decision refers to Articles L. 622-17, L. 622-21 and L. 624-2 of the French Commercial Code, the last of these in the version resulting from Ordinance No. 2021-1193 of 15 September 2021.

In June 2017, a user entered into a financial lease (location financière) relating to software acquired by the lessor from a supplier, a contract that the lessor subsequently assigned to a financial institution. Relying on breaches by the supplier, the lessee stopped paying the rentals in October 2018. The assignee gave notice of termination (résiliation) and then brought a claim for payment against the lessee; the lessee joined the supplier to the proceedings in order to obtain rescission of the sale and, as a consequence, the lapse of the financial lease. The supplier was placed in judicial reorganisation in July 2023, before the court of appeal ruled.

The decision under appeal (CA Versailles, 22 October 2024, No. 23/01850) granted rescission of the sale concluded between the supplier and the lessor, then fixed in the schedule of liabilities of the supplier's judicial reorganisation the claim for restitution of the price owed to the lessor. The commercial chamber quashes that head alone: a lower court judge cannot enter in the schedule of liabilities a restitution claim arising from the rescission that it grants itself (free translation).

It follows from the first two of these provisions that where a contract concluded before the opening of the insolvency proceedings is rescinded, after the opening of those proceedings, for non-performance of an obligation other than an obligation to pay a sum of money, the restitution claim, although arising after the opening of the insolvency proceedings, cannot benefit from the priority treatment provided for by those provisions, since it did not arise for the purposes of the conduct of the proceedings or of the observation period, or in consideration for a service provided to the debtor during that period.

Admission falls to a different judge: "It follows from the last of these provisions that the admission of that claim to the schedule of liabilities of the insolvency proceedings falls within the exclusive jurisdiction of the juge-commissaire." Ruling on the substance without remittal, in the interests of the proper administration of justice, the Court holds that the restitution claim amounts to the sum determined by the court of appeal, without entering it in the schedule of liabilities. The first ground of appeal, held manifestly incapable of leading to quashing, did not give rise to a specially reasoned decision.

What consequences for the creditor of the restitution?

A decision recognising a restitution claim does not amount to admission to the schedule of liabilities: the creditor must still file a claim and go before the juge-commissaire. The lower court judge's decision settles the principle and the amount of the restitution. Entry in the schedule of liabilities follows another route: the verification of claims, conducted under the authority of the juge-commissaire. A creditor that stops at the first stage has obtained nothing of use in the insolvency proceedings.

The second lesson concerns the ranking of the claim. A claim arising after the opening judgment (jugement d'ouverture) is not automatically paid in priority. Priority treatment requires that the claim arose for the purposes of the conduct of the proceedings or of the observation period, or in consideration for a service provided to the debtor during that period. A restitution claim arising from the rescission of an earlier contract meets neither of these two alternative conditions.

The court of appeal inferred from that finding that the claim had to be filed, holding that a two-month period ran from the delivery of its decision, on the basis of Article L. 622-24, paragraph 6, of the French Commercial Code. The commercial chamber did not rule on that starting point: its quashing concerns only the fixing of the claim in the schedule of liabilities.

The division of roles between the lower court judge and the juge-commissaire

The decision confirms a strict division: the lower court judge determines the fate of the contract, the juge-commissaire alone decides on admission to the schedule of liabilities. The solution closes off the route consisting in obtaining, from the same judge and in one and the same movement, rescission of the contract and entry of its cost in the debtor's schedule of liabilities. The commercial chamber nevertheless makes clear that the lower court judge retains the power to state the restitution due and to determine its amount: ruling on the substance, it itself determined the amount of the restitution claim.

Two questions remain outside the scope of the decision. The starting point of the period for filing such a restitution claim is not settled; the court of appeal had linked it to the delivery of its decision. Nor is the regime of a restitution claim arising from a non-performance consisting in the failure to pay a sum of money addressed: the rule stated expressly reserves non-performance of an obligation other than a monetary one.

What steps to take when the debtor is in insolvency proceedings?

The creditor of a restitution must organise two separate steps: obtaining rescission before the judge of the contract, then having its claim admitted in the insolvency proceedings. Asking the lower court judge to grant rescission and to quantify the restitution remains useful: that decision provides the basis for filing the claim. Asking the same judge to fix the claim in the schedule of liabilities, by contrast, risks that head being set aside.

• Check whether the claim may qualify for priority treatment: it must have arisen for the purposes of the conduct of the proceedings or of the observation period, or in consideration for a service provided to the debtor during that period.
• File the restitution claim without delay: recognition by the judge of the contract does not dispense with that formality.
• Apply to the juge-commissaire for admission, the only judge with jurisdiction according to the decision discussed here.
• Document the date on which the restitution became due, on which the court of appeal made the filing period depend.

The checks to carry out before applying to a court

Timing is decisive. Rescission obtained after the opening produces a useful effect only if the restitution claim enters the schedule of liabilities through the verification of claims. Before making any application, the creditor therefore determines which judge can give it what: the judge of the contract for rescission and the amount, the juge-commissaire for admission. It then examines, condition by condition, whether its claim can be brought within priority treatment, rather than assuming that it can. Finally, it keeps a record of the date on which the restitution became due, on which, on the court of appeal's reading, the calculation of its filing period depended.