What is the deadline for deferring the date on which payments can no longer be respected?
jeu., 27 févr. 2014 11:03:00 +0100
In ruling no. 13-11509 of 28 January 2014, the commercial chamber at the Court of Cassation confirms the deadline of one year as the date of no longer making payments at the request of the legal administrator. It indeed results "from the provisions of article L. 631-8, (4), of the Commercial Code, in its drafting of the ordinance of 18 December 2008, that the request for modification of the date of inability to respect payments should be made to the court within one year following the ruling opening bankruptcy proceedings".
Yet, what happens in the case of the administrator making a request for modification of the date of inability to respect payments within this period of one year, but decided subsequently (whilst the deadline has expired) to amend the same request by determining a previous date for the inability to respect payments (in respect of the limit of 18 months before the date initiating proceedings)? Should this be considered as a new request or a modification by way of an additional request? It is indeed possible to think that this new request is illegitimate due to the fact that the deadline of one year has expired.
Must this request when made out of time be accepted by the jurisdiction?
The Court of Cassation has issued a positive response. Indeed, according to the aforementioned ruling, insofar as the legal deadlines are respected (request for modification of the date on which payments can no longer be respected during one year following the decision to initiate proceedings; the date on which payments can no longer be respected can only be fixed within the limit of eighteen months preceding the ruling) as insofar as the jurisdiction has not issued a decision, the date indicated in the summons may be amended by the author of the referral (i.e. legal administrator), by way of an additional claim.