The question put to the French Supreme Court was whether a lessor could declare his indemnity claim (i.e., file his proof of claim), not within the one-month deadline set by Article R 622-21(2) of the French Commercial Code applicable to claims for damages by a lessor whose lease agreement is not continued by the court-appointed administrator, but within the two-month deadline under the ordinary rule of law, in application of the provisions of Article R 622-24 of the same Code (Cass. Com, 26 March 2013, no. 11-21.060, no. 12-18.991).
According to the commercial division of the court, the answer is yes.
In the case before it, a company had been placed into court-ordered liquidation on 17 July 2008. On 31 July 2008, the liquidator notified the lessor of the termination of the lease agreement that had been entered into with the lessee. On 14 August 2008, the official notice of the opening of court-ordered liquidation was published in the official gazette BODACC. The loss sustained by the lessor due to the early termination of the lease resulted in an indemnity claim that was declared on 6 October 2008.
However, the claim filed by the lessor was rejected by the bankruptcy judge, on the grounds that any claim arising out of early termination of the lease should have been declared, in accordance with the provisions of Article R 622-21(2) of the French Commercial Code, within one month following notice of termination of the lease by the liquidator, that is to say by 31 August 2008 at the latest.
The lessor appealed the matter before the French Supreme Court. The Court considered that “a claim arising out of the termination of a lease decided by the liquidator in application of Article L 641-12 of the Commercial Code, which was filed by the lessor within a period of two months from the date of publication of the decision ordering liquidation in the BODACC, is not barred, regardless of whether the deadline expired after that imparted by Article R 622-21(2) of same”.
The French Supreme Court has thus specified that if a proof of claim is not filed within the one-month deadline under Article R 622-21(2) of the French Commercial Code, it can still be filed within the two-month deadline under the ordinary rule of law, in accordance with the provisions of Article R 622-24 of the same Code.
The notice in the BODACC having been published on 14 August 2008, the filing of the proof of claim by the lessor on 6 October 2008 was not untimely, since the two-month deadline only ran out on 14 October 2008.