(Cass. Com, Feb. 19, 2013, no. 12-13.662)

In the instant case, a lessee had been placed into receivership on September 27, 2010, and then into court-ordered liquidation on November 8, 2010. Subsequently, on December 28, 2010, the lessor had served the liquidator with notice of termination for nonpayment of the rents accrued since the opening of insolvency proceedings.

In insolvency cases, the nonpayment of rents is governed by the provisions of Articles L. 641-12 3° and L. 622-14 indents 3 to 5 of the Commercial Code, the latter providing that “the lessor may obtain that the termination of the lease be ascertained due to default on the payment of the rent and charges related to occupancy after the issuance of the order opening the proceedings, […], at the expiration of a three-month period from the date of that order”.

The lessor thus sued the liquidator in view of obtaining the de jure termination of the lease on the basis of the termination clause invoked in the notice served on December 28, 2010. The judge in charge of summary proceedings ascertained the termination.

On appeal, the liquidator sought to dismiss the lessor’s claim by asserting that there was no right of action available at law and, relying on Articles L. 641-12 (3) and L. 622-14 indents 3 to 5 of the Commercial Code, contested the applicability of the termination clause. He argued that the notice served on December 28, 2010 did not comply with the three-month period set forth in Articles L. 641-12 (3) and L. 622-14 indents 3 to 5 of the Commercial Code, since the order opening the liquidation proceedings was dated November 8, 2010.

The Court of Appeal rejected the liquidator’s claims and its decision was subsequently confirmed by the French Supreme Court.

In its decision, the Court considered that “the point of departure of the latter is either the date of opening of liquidation proceedings when the order is immediately entered, or else that of the order opening protective or receivership proceedings in case the proceedings are converted into court-ordered liquidation proceedings”.

Insofar as the order opening receivership proceedings had been entered on September 27, 2010, the lessor had complied with the three-month period imposed by the Commercial Code by serving notice on December 28, 2010.

The French Supreme Court has thus specified the point of departure of the three-month period for the application of a termination clause for nonpayment of rents accrued since the date of the order opening the proceedings. The period begins to run from the date of the order opening protective or receivership proceedings if those proceedings are later converted into court-ordered liquidation proceedings.