Supreme Court of Appeal
Civil Division 1

Public hearing on April 2, 1996 Rejection.


Appeal No.: 94-15029
Published in the Newsletter Chair: Mr. Lemontey. Rapporteur: Mr. Chartier. Attorney General: Mr. Gaunet. Lawyers: Mr. Foussard, CPA Waquet, Farge and Hazan.

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


On the sole ground, taken in its various branches:

Whereas, according to the judgment (Angers, January 31, 1994) that after a bankruptcy ruling of 23 August 1988, Mr. Payen was placed into liquidation September 20, 1988, that the day after September 21, 1988, Ms. Beaujean is committed to take over responsibility for the debt to society Mr. Payen-Drouard Lepelletier, that has not been resolved, the company has assigned Mrs. Beaujean for payment;

Whereas it is alleged to stop rejecting the request of the company and ordered it to justify a delay in the release of mortgages taken on the judicial building owned by Mrs. Beaujean, then according to the plea, that, first, in case of bankruptcy, creditors’ individual action is suspended, it is incumbent on the other hand the liquidator to sell the property of the debtor, whose assets remain liable for debts pay creditors, the balance of the liquidation balance if any, returned to the debtor, and justifies the conclusion of the proceedings, thus, the payment made by others, since it is likely to satisfy the liability , or the lower bound, is of interest to the debtor himself, notwithstanding the inability of the creditor to sue individually, by considering, in principle, the rule of the suspension of individual lawsuits deprived of any interest the payment made by others, to conclude that Mrs. Beaujean erred on the value of its commitments, the trial court violated Articles 1110 and 1236 of the Civil Code, 154 et seq, 160, 166 and 167 of the Act January 25, 1985, while on the other hand, if we consider that the decision under appeal was delivered on the ground of willful resistance, the error committed by the trial court as to the interest the debtor a payment made by others, characterized in any case a violation of Articles 1116 and 1236 of the Civil Code, and the above Articles of the Law of 25 January 1985, while also not having sought if, regardless of the principle of suspension of proceedings, the disinterestedness of some creditors is not likely to save the credit of the debtor, the lower courts have denied their basic legal decision under Articles 1110 and 1236 of the Code civil and above Articles of the Law of January 25, 1985, when, finally, if we consider that the decision was made on the ground of willful resistance, it is nevertheless vitiated by a failure legal basis, because for the lower courts have considered whether the disinterestedness of some creditors did not allow the debtor to save his credit, and that under Articles 1116 and 1236 of the Civil Code, and the above Articles of the Law January 25, 1985;

But whereas the Court of Appeal ruled that Mrs. Beaujean sovereign was not liable for the amount it has committed to pay, provided that the commitment was substantial debt to Mr. Payen, only if the had known he was not likely to be sought by the effect of the rule of the suspension of proceedings, it would not have agreed to settle its debt, and had no interest in hire heritage “for a moral interest that remains to be seen”, that only those findings, she concluded, correctly, that Mrs. Beaujean was correct in arguing that the mistake she made ​​on the cause of commitment and who had decided to sign him, justified the annulment of the lack of consent , from which it follows that the appeal is unfounded;

FOR THESE REASONS:

Dismiss the appeal.



Publication: Bulletin 1996 I No. 159 p. 113 The contested decision: Court of Appeal of Angers, 1994-01-31


Supreme Court of Appeal
Civil Division 1

Public hearing on May 10, 1995 Partial Cassation.


Appeal No.: 92-10736
Published in the Newsletter Chair: Mr. Gregory, senior adviser acting. . Rapporteur: Ms Gie. General Counsel: Ms. Le Foyer de Costil. Lawyers: MM. Choucroy, Foussard.

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


Whereas, according to the sayings of the lower courts, the Company’s market mixed economy of Orleans (Sominos) was established in 1961 with the mission, in particular, to construct and operate, on lands granted by the Department the Loiret, warehouses and office buildings or commercial use and the management of all buildings that the department deems likely to contribute to economic development, as of 1962, the company has had as general manager persons nominated by one of its shareholders, the Central Equipment Planning (SCET) that Sominos signed June 28, 1972 SCET with an agreement under which the company undertook, with a lump sum, to assist him in legal and tax administrative, technical and economic, as well as financial management that Article 11 of the agreement provided that the Sominos could use the SCET to be made available to “a part qualified competent management of semi-public company and may compensate for the absence or incapacity of the Director “, as from 1 June 1980, Mr. Pellerin has been delegated by the SCET to the Sominos to serve as director, as a result of financial difficulties of the Sominos, an audit was given in December 1986, the Trustee of France, who filed reports in 1987 that, after the dissolution the early Sominos occurred in January 1988, SCET has claimed that company to pay a sum of 212 881.74 francs for the purchase of retirement points for the benefit of Mr. Pellerin, according to a commitment it would signed a letter of November 14, 1986, the Sominos, arguing that the SCET had breached its contractual obligations by making available a framework incompetent who have committed serious mismanagement, was assigned as compensation for his loss; that its judgment (Orleans, November 20, 1991) dismissed the Sominos his application and ordered to pay the SCET the amount claimed;

The first plea: (without interest);

But on the second plea:

Having regard to Article 1131 of the Civil Code;

Whereas, in condemning the Sominos SCET to pay the cost of the redemption of pension points in favor of Mr. Pellerin, stopping merely retain the Sominos can not claim that its commitment to this by letter dated November 14, 1986, in view of the services rendered by Mr. Pellerin, there is an error, in the dark where she was, at that time, the serious mismanagement committed by it, so that it belonged to him, as principal, to use his powers of control and authority over his servant;

What is decisive and, while the error on the existence of the case, albeit inexcusable, justifies the cancellation of the commitment for failure case, the Court of Appeal, did not give legal basis for its decision;

FOR THESE REASONS:

Quashed, but only in that it condemns society Sominos SCET to pay the sum of 212 881.70 francs, the decision of November 20, 1991, between the parties, the Court of Appeal of Orleans shall, therefore, as to what the cause and the parties in the state they were before the judgment and to be granted, the returns before the Court of Appeal of Angers.



Publication: Bulletin 1995 I No. 194 p. 139 The contested decision: Court of Appeal of Orleans, 1991-11-20 titrations

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