Cass. com., June 12, 2025, n° 23-22.076 F-B, Sté Pasaryne ès qual. c/ Sté Kabrousse
The termination of a commercial lease in the context of insolvency proceedings remains a legally regulated operation subject to strict conditions. The decision handed down by the Commercial Chamber of the French Supreme Court on June 12, 2025 provides an important clarification in the case of judicial liquidation following the resolution of the lessee’s reorganization plan. This decision confirms that the opening of new insolvency proceedings prevents termination of the lease for rents falling due after the opening of the receivership, save in exceptional circumstances.
Background and facts
Following the opening of a judicial reorganization, a commercial lessor applied to the official receiver for termination of the lease for non-payment of rent due after the opening judgment. This request was granted. However, in the course of the appeal proceedings, the lessee’s reorganization plan was terminated, leading to the opening of a judicial liquidation.
The Court of Appeal confirmed the termination of the lease. However, the French Supreme Court overturned this decision.
Legal analysis
The High Court reiterates a now well-established principle: a judicial liquidation opened at the same time as the resolution of a reorganization plan constitutes a new collective procedure, and not a continuation of the previous one.
In accordance with article L. 641-12, 3° of the French Commercial Code, the lessor may request termination of the lease for non-payment of rent due after the opening of the insolvency proceedings, but only after a period of three months has elapsed. However, when a judicial liquidation is opened following the resolution of the plan, such termination may only be pursued if a decision recording or pronouncing the termination has acquired the force of res judicata before the judgment opening the new proceedings.
In this case, although a provisionally enforceable decision had terminated the lease, this decision was still under appeal at the time the receivership was opened: it had therefore not acquired the authority of res judicata. The lessor could not rely on it.
Scope of the ruling and practical consequences
This decision confirms the Court’s distinction between two types of procedural succession:
- The conversion of a procedure (sauvegarde → redressement or redressement → liquidation) constitutes an extension of the initial procedure. In this case, the starting point of the time limit for taking action remains the date of the judgment opening the first proceedings.
- The resolution of a plan and the opening of new proceedings (reorganization followed by liquidation) constitute new proceedings, triggering new deadlines for the lessor’s actions.
As a result, rents falling due during the execution of the insolvency plan must be treated as preliquidation receivables. In the absence of a final decision to terminate the lease prior to the opening of the liquidation, the lessor loses the possibility of obtaining termination of the lease for these rents.
