Order in summary proceedings and due and payable liabilities

An order to pay made in summary proceedings (référé) that has become final and binding (force de chose jugée) forms part of the due and payable liabilities (passif exigible) used to establish cessation of payments. The commercial chamber reserves a single situation: where it is argued that the claims in question are the subject of proceedings on the merits. The court hearing an application to open proceedings must then verify that those proceedings do indeed concern the claim relied on by the creditor.

Key points

• An order to pay made in summary proceedings that has become final and binding forms part of the due and payable liabilities taken into account in assessing whether a company is in a state of cessation of payments.
• That claim is excluded from the due and payable liabilities only if it is argued that it is the subject of proceedings on the merits.
• The court must verify that the proceedings on the merits relied on by the debtor concern the claim on which the creditor relies, and not some other sum.
• A challenge directed at repayment of the principal does not, on its own, neutralise a claim for interest that has given rise to a separate interim payment order.
• The relevant provisions are Articles L. 631-1 and L. 640-1 of the French Commercial Code.

An interim payment in summary proceedings excluded from the due and payable liabilities

The commercial chamber quashes the decision refusing to open compulsory liquidation (liquidation judiciaire) without having verified whether the proceedings on the merits brought by the debtor covered the claim for interest already upheld in summary proceedings. The decision discussed here (Com., 25 March 2026, No. 25-10.686) quashes the decision under appeal in its entirety (CA Aix en Provence, 21 November 2024, No. 23/15890) and remits the case to the same court of appeal, differently constituted.

A group of investors subscribed, on 29 October 2021, for bonds convertible into shares issued by a company, in the amount of €3,400,000. Those bonds carried annual interest paid on the anniversary of the entitlement date. The subscribers argued that the first year's interest, amounting to €238,000, had remained unpaid. They brought summary proceedings against the issuer and obtained an interim payment order (condamnation provisionnelle) covering that interest and the principal, which had become payable early.

Five days after their writ of summons (assignation) in summary proceedings, the subscribers issued proceedings against the issuer seeking the opening of compulsory liquidation. The issuer then brought, on 8 December 2023, proceedings on the merits to challenge whether the sum of €3,400,000 was due. The court of appeal relied on that challenge alone to refuse to open the insolvency proceedings.

The commercial chamber rules on the basis of Articles L. 631-1 and L. 640-1 of the French Commercial Code, and without examining the other complaints raised in the appeal. It first sets out the rule applicable to the due and payable liabilities (free translation):

It follows from those provisions that, save where it is argued that the claims in question are the subject of proceedings on the merits, the state of cessation of payments takes into account, within the due and payable liabilities, orders to pay made in summary proceedings that have become final and binding.

The Court then criticises the lower court judges for failing to compare the subject matter of the proceedings on the merits with that of the interim payment order obtained by the creditors:

In so ruling, without considering, as it was asked to do, whether the proceedings on the merits concerned the claim for interest that had been the subject of an interim payment order made in summary proceedings, the court of appeal failed to provide a legal basis for its decision.

What consequences for a creditor holding an interim payment?

A creditor holding an order to pay made in summary proceedings that has become final and binding may rely on that claim within the due and payable liabilities, so long as it is not argued that proceedings on the merits concern it. The interim payment obtained in summary proceedings is therefore not without effect when it comes to establishing cessation of payments. It ceases to be taken into account where the debtor shows that proceedings on the merits concern it precisely.

The decision requires a comparison item by item. A debtor who challenges early repayment of the principal before the lower court has not necessarily challenged the interest due, where that interest has given rise to a separate interim payment order. A creditor therefore has an interest in isolating each head of claim: principal, annual interest, penalties. A general challenge raised by the debtor is not enough if it does not cover all the sums relied on in support of the application to open proceedings.

The challenge on the merits must target the claim relied on

The decision confirms that the existence of proceedings on the merits excludes from the due and payable liabilities only the claims that those proceedings actually concern. The decision under appeal had held that the challenge brought by the issuer deprived the subscribers of a certain and due claim, without drawing any distinction between principal and interest. The commercial chamber rejects that global approach and requires verification of the precise subject matter of the dispute on the merits.

Two limits deserve attention. The rule set out in the decision concerns orders to pay made in summary proceedings that have become final and binding: that status is a condition for the claim to be taken into account within the due and payable liabilities. Furthermore, the quashing does not prejudge the outcome of the dispute. The court of appeal to which the case is remitted will reassess the existence of the claim, the state of cessation of payments and the application to open the insolvency proceedings.

How to secure an application to open insolvency proceedings?

A creditor contemplating proceedings against a debtor for judicial reorganisation (redressement judiciaire) or compulsory liquidation must prepare to establish the due and payable liabilities claim by claim. The challenge raised by the debtor is the main battleground. Anticipating its scope, rather than merely its existence, changes the outcome of the debate.

Several reflexes follow from the decision. Seeking, in summary proceedings, an order broken down by head of claim then makes it possible to rely against the debtor on a free-standing claim for interest. Obtaining the writ of summons and the submissions filed on the merits makes it possible to show that those proceedings do not concern that claim. According to the decision under appeal, the creditors had also obtained a freezing order (saisie conservatoire) which proved fruitless: that kind of step documents the absence of available assets.

Checks to carry out before issuing proceedings against a defaulting debtor

• Identify each head of claim separately, distinguishing the principal, the interest due and ancillary sums.
• Check that the order obtained in summary proceedings has become final and binding before relying on it as part of the due and payable liabilities.
• Obtain the documents from the proceedings on the merits brought by the debtor and determine exactly which sums they concern.
• Keep a record of recovery attempts, which shed light on the absence of available assets.
• Expressly ask the court to consider whether the challenge relied on covers the claim underpinning the application to open proceedings.