Failure to characterize futile and preliminary proceedings: can the creditor reassign ?

The ruling commented provides an opportunity to review the legal framework governing the enforcement of social debt obligations incumbent upon partners of civil companies.

Partners of a civil company are liable indefinitely and in proportion to their shares of the company’s social debts.

Therefore, in the event of judicial liquidation proceedings, a creditor may take action against the partners of the civil company, but the pursuing creditor must first have complied with the obligation to carry out prior and unsuccessfully proceedings against the legal entity as set out in Article 1858 of the Commercial Code; otherwise, their action may be deemed inadmissible.

In the judgment commented, the Court of Cassation states that if a new fact allows a creditor of a civil company whose action has been dismissed on the grounds of inadmissibility, in particular for failure to pursue futile and prior proceedings against the legal entity, to challenge the res judicata effect of a court decision, it must still be proven that this new fact is not simply a fact that was not reported in the first proceedings.

Reference :
Cass. 3rd civ., 18 Jan. 2024, no. 22-19.472