When a customer enters safeguard, receivership (redressement judiciaire) or liquidation in France, an unpaid supplier has two months from publication of the judgment in the BODACC to lodge its claim with the creditors’ representative (mandataire judiciaire), or four months if it is established outside mainland France. If it sold under retention of title, it has three months to reclaim the goods still in stock and, failing that, the price the sub-purchaser has not yet paid. These time limits run without anyone warning the creditor. Missing them costs, in practice, the whole claim.
An office furniture manufacturer in the Sarthe has supplied a distributor in Tours for eight years. At 30 June, three invoices remain unpaid for 94,000 euros; the last delivery, 212 ergonomic chairs, dates from 12 June, and the general terms of sale, signed by the customer when the account was opened, contain a retention of title clause. On 8 July, the sales rep learns by chance that the distributor was placed in receivership on 1 July. The finance director wants to know whether he should “wait for the administrator’s letter”, whether he can go and collect his chairs, and what he can hope to recover.
Nothing should be waited for. The mandataire only writes to creditors on the list supplied by the debtor, and that list is often incomplete; the time limit, meanwhile, runs from publication of the judgment. This page sets out what to do, in what order and within what time limits: check the opening and its date, lodge the claim, reclaim the goods, reclaim the resale price, deal with a customer established in another Member State, and recover a missed deadline where that is still possible.
1. The starting point: publication in the BODACC, not the mandataire’s letter
Everything starts with the opening judgment. It appoints a mandataire judiciaire, who represents the creditors, and, in larger cases, a court-appointed administrator (administrateur judiciaire). It is entered in the trade register and published in the Bulletin officiel des annonces civiles et commerciales (BODACC), usually within a fortnight. It is that publication, not the judgment itself nor any letter from the mandataire, that starts the creditor’s time limits.
The first step is therefore to check the BODACC and the website of the competent court registry (commercial court, or economic activities court where that pilot scheme is running), and note the exact publication date, the mandataire’s name and the type of proceedings. The distinction matters. In safeguard and receivership the business keeps trading, a plan may be adopted and creditors will be paid in line with its schedule; in liquidation the business stops or is reduced to a sale, and unsecured creditors are paid, if at all, from the proceeds of the assets.
The judgment also prohibits the debtor from paying any claim that arose before the opening, save for set-off of connected claims. The distributor can no longer pay the three invoices, even if it wanted to, and all individual enforcement (claims for payment, attachments) is stayed. The only route to payment now runs through the collective proceedings.
2. Lodging the claim: two months, with the mandataire, for everything owed
All creditors whose claim arose before the opening judgment, except employees, lodge their claims with the mandataire judiciaire (Commercial Code, art. L. 622-24, applicable in receivership and liquidation by cross-reference). The time limit is two months from publication of the judgment in the BODACC; it is extended by two months for creditors who do not reside in mainland France where the proceedings are opened by a mainland court (art. R. 622-24). Holders of a published security interest or of a published contract, such as a finance lease, are notified personally, and for them the time limit runs from that notice.
The claim is lodged in writing, by registered letter or through the mandataires’ online portal. It must be lodged even if the claim is not evidenced by a judgment, and claims whose amount is not yet final are lodged on the basis of an estimate. It states the amounts due and to fall due, interest, and any preference or security attached to the claim, with supporting documents: invoices, signed delivery notes, general terms, statement of account. The creditor may lodge the claim itself, through an employee or through an agent of its choice, and it may ratify a claim lodged in its name until the court rules on admission. Where the debtor has notified the claim to the mandataire, it is presumed to have acted on the creditor’s behalf until the creditor lodges its own claim; prudence nevertheless dictates never relying on that presumption, because the amount the debtor records is rarely the creditor’s.
Two mistakes recur. The first is to lodge only the overdue invoices, forgetting the invoice issued after the judgment for an earlier delivery, late-payment penalties and the fixed 40-euro recovery fee per invoice, all of which are pre-opening claims just like the principal. The second is to lodge a claim that is being reclaimed “for the record” only: reclaiming goods and lodging a claim are two separate steps, and a creditor reclaiming its goods must also lodge its claim, in case the reclaim fails in whole or in part.
3. Reclaiming the goods: retention of title and the three-month limit
A retention of title clause transforms the supplier’s position. Until the price is paid it remains the owner of the goods delivered, and the collective proceedings do not strip it of that right. It must still exercise it in the required form and within short time limits. Movable property may only be reclaimed within three months of publication of the opening judgment (Commercial Code, art. L. 624-9). Goods sold under a retention of title clause may be reclaimed if they are still in existence in kind at the opening, provided the clause was agreed in writing no later than delivery; it may be agreed in a document governing a series of commercial transactions, which covers general terms accepted when the account was opened (art. L. 624-16).
The procedure is precise. The reclaim is sent within the three months by registered letter with acknowledgment of receipt to the administrator if one has been appointed, or failing that to the debtor, with a copy to the mandataire judiciaire. If the claim is not accepted within one month of receipt, the claimant must, on pain of being time-barred, apply to the supervising judge (juge-commissaire) no later than one month after that response period expires (art. R. 624-13). The real timetable is therefore three months, plus one month’s wait, plus one month to go to the judge, and each is a strict time bar.
The decisive point is existence in kind. Are the 212 chairs delivered on 12 June still in the distributor’s warehouse at 1 July, identifiable by their references and serial numbers? Then they can be reclaimed. Have they been resold? Then reclaim in kind fails, but the price can be reclaimed (see below). Have they been incorporated into another asset? Reclaim remains possible if they can be separated without damage. For fungible goods such as raw materials or standard components, it extends to goods of the same kind and quality held by the debtor. The creditor therefore has every interest in asking the administrator at once for a joint stock-take, or having one drawn up by a commissaire de justice with court permission, before the stock is sold in the ordinary course of business.
The timetable for the first days is therefore built backwards. The judgment was published in the BODACC on 10 July: the claim must reach the mandataire by 10 September, the reclaim must reach the administrator by 10 October, and if the administrator stays silent the supervising judge must be seised within the month after its response period expires, so that a supplier who sends its reclaim on 5 October, believing it has acted in time, must still watch a November deadline that no letter will remind it of, while in the Tours warehouse the chairs keep leaving for the distributor’s customers as orders come in. Every week counts. Every chair sold is a chair lost to reclaim in kind.
There is no reclaim if, by decision of the supervising judge, the price is paid immediately; the judge may also, with the creditor’s consent, allow time to pay, and the price is then paid as a priority claim of the proceedings. In receivership, the administrator often prefers paying to returning, where the goods are needed to keep trading. That is an excellent outcome for the supplier, who obtains within weeks what it would never have received as an unsecured creditor.
4. Reclaiming the price: when the goods have been resold
The distributor may have resold some of the chairs to an insurance company fitting out its offices, which has not yet paid its invoice. Retention of title then shifts to the claim for the price: the price, or part of the price, of the goods that had not been paid, settled in value or set off between the debtor and the sub-purchaser at the date of the opening judgment may be reclaimed, as may any insurance indemnity subrogated to the goods (Commercial Code, art. L. 624-18). The supplier is then paid directly by the sub-purchaser, outside the proceedings.
This action requires information the supplier does not have: who bought, when, and for how much. It asks the administrator and the mandataire for it in its reclaim letter, expressly citing Article L. 624-18, and supplements it by its own means (purchase orders passed on by its customer, direct deliveries to end users). Time works against it: every day a sub-purchaser pays and the price claim is extinguished.
5. The customer is established in another Member State
A French exporter whose German, Italian or Belgian customer becomes insolvent is governed by Regulation (EU) 2015/848 on insolvency proceedings. Main proceedings are opened in the State where the debtor has its centre of main interests, and they follow that State’s law, including time limits for lodging claims. Two rules protect foreign creditors. They may lodge claims by any means accepted by the law of the State of opening, without needing a lawyer for that formality alone (art. 53), using a standard form, and the time limit may not be shorter than thirty days from publication of the opening decision in that State’s insolvency register (art. 55). Above all, the opening of proceedings against the buyer does not affect the seller’s rights based on retention of title where, at the time of opening, the asset is situated in a Member State other than the State of opening (art. 10).
The first step is therefore to consult the insolvency register of the State concerned, interconnected through the e-Justice portal, and note the publication date; the second is to check where the goods physically are. Goods still in a warehouse in France or in transit may escape the foreign proceedings, which can change the outcome entirely. Jurisdiction and recovery rules within the EU are discussed in the article on recovering a debt in the EU without exequatur, and drafting an enforceable retention of title for exports in the article on Incoterms and retention of title.
6. The deadline has passed: relief from time bar and unenforceability
A creditor that did not lodge its claim in time is not admitted to distributions and dividends unless the supervising judge relieves it from the time bar. It must show that its failure was not its own fault, or that it resulted from an omission by the debtor, who did not include the claim on the list given to the mandataire (Commercial Code, art. L. 622-26). The application for relief must be made within six months of publication of the judgment; by way of exception, a creditor that shows it could not have known of the debtor’s obligation before that period expired has a time limit running from the date it could no longer be unaware of it. Once relieved, it only shares in distributions made after its application.
An unlodged claim is not extinguished, unlike under the law before 2006. It becomes unenforceable against the debtor while the plan is being performed, and afterwards if the plan’s commitments have been met; it is also unenforceable against individual co-obligors and guarantors. For a supplier the difference is academic: a claim unenforceable against the company and against the director who guaranteed it cannot be recovered. A missed reclaim cannot be rescued at all; the three-month limit knows no relief.
7. What the supplier must have prepared before the default
All of the above assumes a file that cannot be put together in a week. Retention of title only exists if it was agreed in writing no later than delivery: general terms printed on the back of invoices are not enough, for lack of prior acceptance, as the courts have repeatedly held. It can only be exercised over identifiable goods, which means references, batch or serial numbers, and invoicing that links each item to an unpaid invoice. And it only turns into a price claim if the supplier knows to whom its customer resells. A supplier that has signed its general terms with its customer, marks its products and knows the main end users turns a likely loss into near-certain recovery. The others lodge their claims and wait for a dividend that rarely exceeds a few per cent in liquidation.
For the Sarthe manufacturer, the roadmap is therefore: note today the BODACC publication date; send this week to the administrator, with a copy to the mandataire, a reclaim of the 212 chairs and of the price of any resold; lodge the full claim with the mandataire, principal, penalties and fixed recovery fees, stating that it is secured by retention of title; and diarise the two one-month periods that follow the reclaim letter. Proceedings against the director who stood as guarantor are, for their part, stayed during the observation period, as explained in the article on the director’s personal guarantee.
The firm assists suppliers and exporters with their proofs of claim, their reclaims and their dealings with French mandataires and administrators, in France and in proceedings opened in another Member State. Its page on commercial debt recovery describes this work, and the contact form allows pending proceedings to be flagged in a few lines, publication date included.
Further reading: Warranty of assets and liabilities: duration, cap and how to make a claim.
Frequently asked questions
What is the time limit for lodging a claim when a customer is in receivership or liquidation in France?
Two months from publication of the opening judgment in the BODACC, with the mandataire judiciaire. It is extended to four months for creditors who do not reside in mainland France where proceedings are opened in mainland France (Commercial Code, art. R. 622-24). It runs even if the creditor has received no letter from the mandataire.
Can goods delivered to a customer in insolvency proceedings be recovered?
Yes, if they were sold under a retention of title clause agreed in writing no later than delivery and are still in existence in kind. The reclaim must be sent within three months of publication of the judgment, by registered letter to the administrator or the debtor, then brought before the supervising judge within one month after the one-month response period expires (Commercial Code, arts. L. 624-9, L. 624-16 and R. 624-13).
What if the customer has already resold the goods?
The supplier may reclaim the price, or the part of the price, that the sub-purchaser had not paid, settled in value or set off at the date of the opening judgment (Commercial Code, art. L. 624-18). It is then paid directly by the sub-purchaser. Speed matters, because every payment by the sub-purchaser to the debtor extinguishes part of that right.
What happens if the claim was not lodged in time?
The creditor may ask the supervising judge for relief from the time bar within six months of publication of the judgment, by showing that its failure was not its own fault or resulted from the debtor’s omission (Commercial Code, art. L. 622-26). Otherwise the claim becomes unenforceable against the debtor and individual guarantors during and after the plan, and the creditor is excluded from distributions in liquidation.
The customer is insolvent in another EU country: which rules apply?
Regulation (EU) 2015/848 applies. The claim is lodged under the law of the State of opening, using a standard form, within a time limit of at least thirty days from publication in that State’s insolvency register (arts. 53 and 55). Retention of title is not affected where, at the opening, the goods are situated in a Member State other than the State of the proceedings (art. 10).
On the same subject: late payment between businesses in France; Incoterms 2020, transfer of risk and retention of title; director liability for a shortfall of assets in liquidation.