Claim for Restitution and Collective Proceedings: Why the Trial Judge Cannot Themselves Determine Liabilities

By Pierre-Louis Roquet, Attorney at the Lyon Bar | 1 août 2026 | Reading time : 9 min
Minimalist illustration: contractual documents, court arch, and scales of justice

A claim for restitution arising from the post-commencement termination of a prior contract is not preferential: it must be declared, and only the *juge-commissaire* (supervising judge) can admit it to the liabilities.

Analysis of a judgment Cass. com., July 1, 2026, n° 24-22.541, by Pierre-Louis Roquet, a business law attorney focused on business law in Lyon.

Software that doesn't deliver on its promises. A financial lease concluded in June 2017 to finance it. A lessee who, in October 2018, stops paying rent and invokes the supplier's breaches. The scenario is familiar to those who litigate IT equipment disputes. The lessor sues for payment. The lessee calls the supplier to intervene and requests the termination of the equipment transfer contract, then the lapsing of the lease as a consequence. The proceedings continue.

Then an external event disrupts the equation. On July 27, 2023, in the midst of the procedure, the supplier is placed under redressement judiciaire (judicial reorganisation). The Versailles Court of Appeal rules nonetheless. It orders the termination. It finds that the lessor's claim for restitution does not fall under Article L. 622-17 of the Commercial Code. It specifies that it must be declared no later than two months after the judgment is rendered. And, in the same motion, it fixes it as a liability of the redressement judiciaire at 90,417.60 euros.

The Commercial Chamber quashes the decision. The Court of Appeal's reasoning was correct in its premise and wrong in its conclusion.

A claim arising after the opening judgment is not necessarily a preferential claim

The first contribution concerns the classification of the claim for restitution. The termination is pronounced after the opening judgment. The claim for restitution therefore arises subsequently. The reflex is tempting: subsequent claim, therefore preferential claim, therefore payment on due date and outside declaration.

This is a misinterpretation. Article L. 622-17 does not reserve its preferential treatment for all subsequent claims. It reserves it for those that arise regularly for the needs of the procedure or the observation period, or in exchange for a service provided to the debtor during this period. The date of origin is not enough. It requires utility for the procedure.

However, a claim for restitution following the termination of a prior contract does not meet either of these two criteria. It does not finance anything. It does not remunerate any subsequent service. It is the financial consequence of the nullification of a contractual relationship established before the opening of the proceedings. The Court therefore refers it to the ordinary law regime: a claim to be declared, a claim to be verified, a claim subject to collective discipline.

This clarification is doubly useful. It deprives the creditor of an illusion of comfort. It also protects the debtor and its bodies against circumventing the equality of creditors. The Commercial Chamber follows its jurisprudence of June 15, 2022, which had already excluded restitution claims arising from a subsequent termination from preferential treatment.

One point deserves attention. The judgment expressly refers to the non-performance of an obligation other than an obligation to pay a sum of money. This is not by chance. Article L. 622-21 interrupts or prohibits actions for termination due to non-payment of a sum of money. Termination for breach of an obligation to perform, here the delivery of compliant software, escapes this paralysis. The action could therefore be pursued. It is precisely because it could be pursued that the question of jurisdiction arose.

The trial judge ruled on what belonged only to the juge-commissaire

The second contribution is procedural, and its practical scope is considerable.

Once the claim for restitution is referred to ordinary law, Article L. 624-2 applies. The admission of claims falls under the sole jurisdiction of the juge-commissaire, who rules on the proposal of the mandataire judiciaire (judicial administrator). This jurisdiction is not a matter of organizational convenience. It is exclusive.

By fixing the amount of the liabilities itself, the Court of Appeal exceeded its powers. The Court of Cassation does not speak of a mere error of law in the determination of the amount. It notes that it was not within the powers of the trial judge to fix the claim arising from its own termination decision as a liability. The judge seized of the termination can pronounce the termination. They can liquidate the principle and the amount of restitution between the parties. They cannot cross the threshold of the collective proceedings and record this amount as a liability.

The distinction seems subtle. It is structural. It reminds us that collective proceedings form their own jurisdictional order, with their own judge, their own administrator, their own timetable, and their own statement of claims. Ordinary law litigation stops at the threshold.

The paradox remains. The Court quashes without remitting, in the name of the proper administration of justice, on the basis of Articles L. 411-3 of the Code of Judicial Organization and 627 of the Code of Civil Procedure. Then it states, in its operative part, that the claim for restitution amounts to 90,417.60 euros. It therefore fixes the amount after having censured the Court of Appeal for having fixed it. The contradiction is only apparent. The Court does not pronounce any admission to the liabilities. It ascertains an amount, which is the subject of the dispute between the parties. It leaves it to the juge-commissaire, seized of a regular declaration, to decide on the admission, its rank, and its fate. This means that the restitution is quantified but not yet admitted.

The reflex to have from the outset of the action for termination

The operational lesson is learned upstream, not at the cassation stage.

A creditor pursuing the termination of a contract against a co-contractor placed under collective proceedings must reason in two parallel steps. Before the trial judge, they pursue termination and restitution. Before the mandataire judiciaire, they declare their claim. The two approaches do not substitute each other. They accumulate.

The declaration must be made within the two-month period of Article L. 622-24, as a precautionary measure, presenting it as contingent and referring to the ongoing proceedings. Waiting for the termination judgment is a dangerous gamble. The Versailles Court of Appeal had believed it could adjust the calendar by setting a starting point from the due date, with a two-month period after its judgment. The Court of Cassation does not validate this construction, since it censures the provision that carried it. The practitioner will remember that no indication from the trial judge secures a declaration period.

Cases of financial leasing of IT equipment are numerous in the fabric of Lyon SMEs, where contractual cascades between supplier, lessor, and assignee multiply the creditors. When one of the links falters, procedural vigilance determines the economic fate of the case.

Finally, the judgment leaves several questions open. It says nothing about the fate of restitution in kind, when the asset can be recovered. It does not resolve the situation of termination for non-performance of an obligation to pay a sum of money, a hypothesis that Article L. 622-21 locks upstream. It does not rule on the precise starting point of the declaration period when the claim for restitution is only due on the day of the decision. On this last point, prudence dictates declaring early and supplementing afterward.

Frequently Asked Questions

My supplier is in redressement judiciaire, how do I recover the sums paid?

You must act on two fronts simultaneously. Pursue the termination proceedings before the competent judge, if the alleged breach does not relate to the payment of a sum of money. In parallel, declare your claim for restitution to the mandataire judiciaire within two months of the publication of the opening judgment, on a contingent basis. Without declaration, the claim becomes unenforceable against the proceedings.

Is a claim arising after the opening judgment always paid in priority?

No, and this is the core of the judgment. Article L. 622-17 requires that the claim arose regularly for the needs of the proceedings or the observation period, or in exchange for a service provided to the debtor during this period. Mere chronological posteriority to the opening judgment confers no privilege. A claim for restitution arising from a prior contract remains subject to declaration.

Can the judge who pronounces the termination fix the claim as a liability?

No. Admission to the liabilities falls under the sole jurisdiction of the juge-commissaire, in application of Article L. 624-2. The trial judge can pronounce the termination and determine the amount of restitution between the parties. If they record this amount as a liability, they exceed their powers, and their decision is subject to cassation on this point.

Can I still take action for termination against a company in collective proceedings?

It depends on the alleged breach. Article L. 622-21 prohibits actions seeking the termination of a contract for non-payment of a sum of money. However, an action based on the non-performance of an obligation to perform, such as the delivery of compliant software, remains admissible. The qualification of the breach therefore conditions the admissibility of the action.

What happens if I failed to declare my claim within two months?

The undeclared claim is not extinguished, but it becomes unenforceable against the proceedings. You will neither be admitted to the statement of claims nor paid under the plan. An action for relevé de forclusion (relief from foreclosure) is available before the juge-commissaire, under strict conditions, particularly when the omission is not due to the creditor. This recourse remains uncertain and should never serve as a strategy.

The Court of Cassation set the amount at 90,417.60 euros: is the claim admitted as a result?

No. The Court quashed without remitting and ascertained the amount of restitution, but it did not pronounce any admission. The creditor will still have to declare their claim and let the juge-commissaire rule on its admission and rank. Judicial quantification does not dispense with any formality of the verification procedure.

How can I secure my financial lease contracts upstream?

The drafting makes all the difference. Provide for termination clauses articulated between the supply contract and the lease contract, clear stipulations on the fate of rents in case of supplier default, and a guarantee mechanism. A contractual audit carried out before signing costs infinitely less than a declaration of claim in collective proceedings.

Sources

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