The judgments rendered by the commercial division of the Court of Cassation on the penalty clause published in the Bulletin are not very numerous. Consequently, the practice remains quite attentive to all the decisions which can be the occasion to specify the contours and the regime. The penalty clause remains an institution, in fact, extremely used for its formidable effectiveness, particularly in business or lease contracts (F. Terré, P. Simler, Y. Lequette and F. Chénedé, Civil law – Obligations13e ed., Dalloz, coll. “Precise”, 2022, p. 996, no. 888). But this effectiveness can be undermined when the debtor finds himself in collective proceedings. The declaration of the claim is then a decisive moment in that the creditors can thus enter into the said collective procedure and hope to one day obtain their due according to their respective situations (on the legal qualification of the declaration of claim, P. Le Cannu and D Robin, Law of companies in difficulty9e ed., Dalloz, coll. “Precise”, 2022, p. 532, no. 786). The judgment delivered on March 8, 2023 by the commercial chamber of the Court of Cassation explores a question at the crossroads of these paths.
The facts giving rise to the appeal begin with the conclusion of a commercial lease by deed of November 29, 2012 between a civil real estate company and a second company relating to premises located in a shopping centre. Article 9 of the contract stipulates that if the lessee does not show up on the scheduled delivery date (set at 2 months before the date of opening of the shopping center to the public) or if he expresses his desire not to carry out the lease, he should pay the lessor a fixed indemnity corresponding to three years’ basic rent, all taxes included. Here is that the lessee is subject on April 30, 2013 to a collective procedure (namely, a receivership). The civil real estate company notifies its debtor later that the delivery of the premises will take place on August 7, 2013. The judicial administrator informs the said civil company that, pursuant to article L. 622-14 of the commercial code, that he. ..
