If an asset is encumbered by a privilege, a pledge or a mortgage, another guarantee may be substituted where necessary if it offers equivalent advantages. In the absence of agreement, the court may order that substitution.
Commercial Code
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If the enterprise does not perform its obligations fixed by the plan, the court may, of its own motion or at the request of a creditor and after hearing the syndic, pronounce the termination of the plan and decide the judicial liquidation of the enterprise. The creditors subject to the plan shall declare all their claims and sec…
The transfer shall aim to ensure the maintenance of activities capable of autonomous operation and of all or part of the jobs attached thereto and to settle the liabilities. It may be total or partial. In the latter case, it must not diminish the value of the assets not transferred; it must cover all the production elements form…
Any offer must be communicated to the syndic within the period he has set and has brought to the knowledge of the controllers. Unless otherwise agreed between the head of the enterprise, the syndic and the controllers, a period of fifteen days must elapse between receipt of an offer by the syndic and the hearing at which the cou…
The court shall select the offer that makes it possible, under the best conditions, to ensure the most durable maintenance of the employment attached to the transferred whole and payment of the creditors.
The court shall determine the finance lease, rental or supply of goods or services contracts necessary for maintaining the enterprise's activity in the light of the observations of the enterprise's co-contractors transmitted by the syndic. The judgment adopting the plan shall effect the transfer of those contracts. Those contrac…
When the court is called upon to rule on the assignment of the contracts referred to in the preceding article or on the transfer of the security interests referred to in article 617, the counterparty or counterparties and the holder or holders of the security interests shall be summoned to the hearing by the clerk, by registered letter with acknowledgement of receipt.
In implementation of the plan adopted by the court, the syndic shall execute all acts necessary for the completion of the assignment. Pending the completion of these acts, the syndic may, under his responsibility, entrust the management of the assigned business to the assignee.
The mission of the syndic shall last until the closure of the proceedings. The court shall order the closure of the proceedings after payment of the assignment price and its distribution among the creditors. In the event of a total assignment of the assets of a commercial company, the latter shall be dissolved. Sub-section II: The obligations of the assignee
As long as the assignment price has not been paid in full, the assignee may not, except in the case of stock, alienate, give as security or give under a management lease the tangible or intangible assets he has acquired. Their total or partial alienation, their allocation as security, their management lease may be authorised by the court after a report by the syndic. The court must take into account the guarantees offered by the assignee
The court may attach to the assignment plan a clause rendering inalienable, for a period that it shall fix, all or part of the assigned assets.
Any act carried out in violation of the two preceding articles shall be annulled at the request of any interested party submitted within a period of three years from the conclusion of the act or its publication.
The assignee shall report to the syndic on the performance of the provisions provided for by the assignment plan at the end of each financial year following the assignment. If the assignee does not perform his commitments, the court may, on its own motion, at the request of the syndic or of a creditor, order the resolution of th…
In the event of default in payment of the assignment price, the court may, on its own motion, at the request of the syndic or of any interested party, appoint a special administrator whose mission and duration, which may not exceed three months, it shall determine. The assignee shall be summoned by the clerk to be heard in camera.
The assignment price shall be distributed by the syndic among the creditors according to their rank. The judgment that adopts the plan of total assignment of the business shall render due the debts not yet due.
Where the assignment covers assets encumbered with a special privilege, a pledge or a mortgage, a share of the price shall be allocated by the court to each of those assets for the distribution of the price and the exercise of the right of preference.
Until full payment of the price, which shall effect the clearing of the registrations encumbering the assets included in the assignment, creditors benefiting from a right of pursuit may exercise it only in the event of alienation of the assigned asset by the assignee. However, the burden of the special immovable and movable secu…
In the case provided for in the first paragraph of the preceding article, the assignee shall inform the syndic in advance of any alienation of an assigned asset. The syndic shall notify the creditors benefiting from the right of pursuit. Title III: Judicial liquidation Chapter I: General provisions
The judicial liquidation procedure shall be opened when the situation of the business is irremediably compromised. The rules of procedure provided for in articles 560 to 570 shall be applicable. The judgment pronouncing the judicial liquidation shall entail as of right the divestment of the debtor of the administration and the d…
When the general interest or the interest of the creditors requires the continuation of the activity of the business subject to judicial liquidation, the court may authorise that continuation for a duration that it shall fix, either on its own motion or at the request of the syndic or of the King's prosecutor. The provisions of…
The judicial liquidation shall not entail as of right the termination of the lease of the immovable properties allocated to the activity of the business. The syndic may continue the lease or assign it under the conditions provided for in the contract concluded with the lessor, with all the rights and obligations attached thereto…
Sales of immovable property shall take place in accordance with the forms prescribed in matters of immovable property seizure. However, the judge-commissioner shall, after collecting the observations of the supervisors and after hearing or duly summoning the head of the undertaking and the trustee, set the reserve price and the…
Production units consisting of all or part of the movable or immovable assets may be the subject of a global sale. The trustee shall solicit acquisition offers and set the time limit during which they are received. Any interested person may submit his offer to him. Every offer must be in writing and include the information provi…
The judge-commissioner shall order the sale by public auction or by private treaty of the other assets of the undertaking, after hearing or duly summoning the head of the undertaking and after collecting the observations of the supervisors. The judge-commissioner may request that the draft amicable sale be submitted to him in order to verify whether the conditions that he has set have been complied with.
The trustee may, with the authorisation of the judge-commissioner and after hearing or duly summoning the head of the undertaking, submit to arbitration and settle all disputes concerning the creditors collectively, even those relating to rights and actions in immovable property. If the subject matter of the arbitration agreemen…
The trustee authorised by the judge-commissioner may, by paying the debt, redeem the assets pledged by the debtor or the retained property. In the absence of redemption, the trustee must, within six months of the judgment opening the judicial liquidation, proceed with the realisation of the pledge. The trustee shall notify the p…
The judgment opening the judicial liquidation makes unmatured claims due and payable.
Creditors holding a special privilege, a pledge or a mortgage, as well as the Public Treasury for its privileged claims, may, once they have declared their claims, even if those claims have not yet been admitted, exercise their right of individual pursuit if the trustee has not undertaken the liquidation of the encumbered assets…
The judge-commissioner may, of his own motion or at the request of the trustee or a creditor, order payment, on a provisional basis, of a share of the definitively admitted claim. Chapter III: The settlement of liabilities First Section: The settlement of creditors
If one or more distributions of sums precede the distribution of the price of the immovable property, the admitted privileged and mortgage creditors shall participate in the distributions in proportion to their total claims. After the sale of the immovable property and the final settlement of the order of priority among the mort…
The rights of mortgage creditors who are partially admitted to the distribution of the price of immovable property shall be settled on the basis of the amount remaining due to them after the immovable allocation. The excess of the dividends they have received in earlier distributions over the dividend calculated after allocation…
Preferential or mortgage creditors who have not been fully paid out of the price of immovable property shall rank with unsecured creditors for the amount remaining due to them.
The provisions of Articles 625 to 632 shall apply to creditors benefiting from a special movable security.
The amount of the assets, after deducting the costs and expenses of the judicial liquidation, the allowances granted by the judge-commissioner to the head of the enterprise or to the directors or to their family and the sums paid to preferential creditors, shall be distributed among all creditors rateably in proportion to their…
At any time, the court may pronounce, even of its own motion, the head of the enterprise having been summoned and on the report of the judge-commissioner, the closure of the judicial liquidation: - when there is no longer any due and payable liability or the trustee has sufficient sums to pay off the creditors; - when the continuation of the operations of the judicial liquidation is rendered impossible due to insufficient assets.
The trustee shall proceed to the rendering of accounts. Title IV: The rules common to the procedures of treatment and judicial liquidation Chapter One: The bodies of the procedure
In the opening judgment, the court shall designate the judge-commissioner and the trustee. No relative up to the fourth degree inclusive of the head or of the directors of the enterprise may be designated as judge-commissioner or trustee. Section One: The judge-commissioner
The judge-commissioner shall be responsible for ensuring the rapid conduct of the procedure and the protection of the interests involved.
The judge-commissioner shall rule by order on the requests, disputes and claims for recovery falling within his competence as well as on the complaints made against the acts of the trustee. The orders of the judge-commissioner shall be immediately filed with the registry. Section II - The trustee
The trustee shall be responsible for conducting the operations of judicial reorganization and liquidation from the opening judgment until the closing of the procedure. He shall monitor the execution of the continuation or transfer plan. The trustee shall verify the claims under the supervision of the judge-commissioner. In carry…
The trustee shall keep the judge-commissioner informed of the conduct of the procedure. They may at any time request communication of all acts or documents relating to the procedure. The King's prosecutor shall communicate to the judge-commissioner, at the latter's request or of his own motion, notwithstanding any contrary legislative provision, all information in his possession that may be useful to the procedure.
Subject to the rights recognized for the controllers, the trustee alone shall have standing to act in the name and in the interest of the creditors.
The trustee shall take all measures to inform and consult the creditors. He shall communicate to the judge-commissioner the observations addressed to him by the controllers.
The court may replace the trustee at the request of the judge-commissioner, either of its own motion or on complaint by the debtor or a creditor. Section III: The controllers
The judge-commissioner shall designate one to three controllers from among the creditors who request it from him. The controllers may be natural persons or legal persons. Where the judge-commissioner designates several controllers, he shall ensure that at least one of them is chosen from among creditors holding security and anot…
From the time he takes office, the trustee shall be required to require the head of the enterprise or, as the case may be, to himself perform all acts necessary for the preservation of the rights of the enterprise against its debtors and for the preservation of production capacities. He shall have standing to register in the nam…
Where the annual accounts have not been prepared or made available to him, the trustee shall draw up a statement of the situation with the help of any available document or information.
The judge-commissioner may prescribe to the trustee the affixing of seals on the property of the enterprise.
The trustee, after having where appropriate requested the removal of the seals, shall proceed to the inventory of the property of the enterprise. The absence of an inventory shall not preclude the exercise of actions for recovery or restitution.
From the opening judgment, de jure or de facto managers, whether remunerated or not, may not, on pain of nullity, transfer the partnership interests, shares or investment certificates or voting-right certificates representing their shareholding rights in the company that was the subject of the opening judgment except under the c…