Increased vigilance required in actions for recovery: a "yes, but" does not constitute acceptance

In the presence of a retention of title clause where collective insolvency proceedings are initiated against a debtor, the creditor must file a request for the recovery of goods sold under the retention of title clause before the judicial administrator within three months from the date the opening judgment is published in the Bodacc (Official Bulletin of Civil and Commercial announcements).

If the judicial administrator does not agree to the request, the creditor must challenge the decision to the bankruptcy judge within two months from the date the request is filed.

The creditor must however detect the absence of the judicial administrator's agreement…

The response of a judicial administrator to a request for recovery whereby he acknowledges the binding effect of the retention of title clause in the collective insolvency proceeding but specifies that the goods subject of the retention of title clause are of a lower value than the amount claimed, does not constitute an agreement to recovery (Cour de cassation, Commercial Chamber, 3 May 2016, n° 14-24.586).

In such case, the claimant must refer the matter to the bankruptcy judge within the timescale provided by Article R. 624-13 of the Commercial Code, being two months from the date the request for recovery was filed.

  • Clause conferring jurisdiction to Californian courts is abusive

In a case between Facebook and one of its users, the Court of Appeal of Paris has ruled as abusive a clause compelling the user, in the event of a conflict with Facebook, to refer its claim to a distant court and thereby incur disproportionate costs in light of the economic value of the contract (Court of Appeal of Paris, 12 February 2016, n° 15/08624).  

  • You can't have your cake and eat it too

The victim of a unilateral termination of a fixed-term contract cannot seek compensation for loss of profits foreseen within the life of the contract and also seek compensation for abrupt termination of commercial relations (Cour de cassation, Commercial Chamber, 16 February 2016, n° 14-22.914).  

  • Serial litigation and the requirement of impartiality

The fact that a judge has handed down a decision in a serial litigation is not in and of itself likely to affect his impartiality to rule on other cases relating to the same serial litigation (Cour de cassation, Second Civil Chamber, 7 April 2016, n° 15-16.091).  

  • Rushing is useless, one has to leave on time

The period to make an objection provided for in Article 82 of the Civil Procedural Code (fifteen days from the date the decision is handed down or from the date the parties received notice of the decision if they are not aware of said date) does not run against a party who has received, before the expiry of the period, a notice of the decision stating an incorrect legal remedy (appeal instead of objection) (Cour de cassation, Plenary Assembly, 8 April 2016, n° 14-18.821).

Quote of the month:

"We are all aware that law is the most powerful school of imagination. No poet has ever interpreted nature as freely as a lawyer has interpreted the truth." Jean Giraudoux