|The administrator alone has the right to demand the execution of current contracts by providing the service promised to the debtor’s co-contracting party. The contract is automatically terminated after a formal notice sent to the administrator that has remained unanswered for more than a month. Before the expiry of this period, the judge-commissioner may set the administrator a shorter period or grant him an extension, which may not exceed two months, to take sides.
When the service relates to the payment of a sum of money, this must be made in cash, except for the administrator to obtain the acceptance, by the debtor’s co-contracting party, of payment terms. In view of the provisional documents at his disposal, the administrator ensures, when he requests execution, that he will have the necessary funds for this purpose. In the case of a contract for execution or payment over time, the administrator terminates it if it appears to him that he will not have the necessary funds to fulfill the obligations of the following term.
In the absence of payment under the conditions defined in the previous paragraph and the agreement of the co-contracting party to continue the contractual relations, the contract is automatically terminated and the public prosecutor’s office, the administrator, the creditors’ representative or a controller may refer the matter to the court for the purpose of terminating the observation period.
The co-contracting party must fulfill its obligations despite the failure of the debtor to perform commitments made prior to the opening judgment. Failure to perform these commitments only entitles creditors to a declaration on the liabilities side.
If the administrator does not exercise the right to continue the contract, the non-performance may give rise to damages, the amount of which will be declared as a liability for the benefit of the other party. This may nevertheless defer the restitution of sums paid in excess by the debtor in execution of the contract until a decision has been made on damages.
Notwithstanding any legal provision or any contractual clause, no indivisibility, termination or resolution of the contract may result from the sole fact of the opening of judicial reorganization proceedings.
The provisions of this article do not concern employment contracts.
|The specificity of the current contract regime in insolvency proceedings, Brunetti-Pons, Clotilde, Revue Trimestrielle de Droit Commercial (RTD Com), n ° 4, 01/10/2000, pp. 783-816The continuation of current contracts relating to software, Gelly, Pascale, Revue de Droit de l’Informatique et des Télécoms (DIT), n ° 2, 04/01/1996, pp. 83-91
The substitute of the will of the administrator, Lafont, Hubert, Revue de Jurisprudence Commerciale (RJC), n ° 11, 01/11/1995, pp. 89-97
The new regime for the continuation of contracts: article 37 of the law of January 25, 1985, Lemistre, Bruno; Mercier, Jean-Luc, Les Petites Affiches, n ° 110, 09/14/1994, pp. 55-58
Cour de cassation, January 18, 2000, EDF v Dutour, Perre-Vignaud, Virginie; Pellat, Joël, Legal Cahiers of electricity and gas (CJEG), n ° 567, 07/01/2000, pp. 311-316