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Creditors who obtain payment by cashier’s check may be required to return it in the event of recovery or liquidation of their debtor. An URSSAF has summoned a company for an arrears of social security contributions. The recovery was announced on November 5, 2007.
The date of cessation of payments by the company was set for September 18, 2007. The recovery gave rise to liquidation on November 19, 2007. The last element of this case, on October 23, 2007, URSSAF had received a bank check in payment of part of the contributions. The judicial liquidator asked URSSAF to return the check. She refused because the check had been issued by a credit institution and not by the debtor. The Court of Appeal ordered URSSAF to reimburse the amount of the check to the liquidator.
Indeed, on the one hand, the company had indeed provided the equivalent of the amount of the check to the bank and, on the other hand, the URSSAF was aware of the suspension of payment of the company (since it had assigned it in turnaround ): two good reasons that undermined URSSAF’s argument. The Court of Cassation, by confirming the interpretation of the judges, is changing its previous case law.
Grégory DAMY Doctor of Law LAWYER NICE, specialist in banking law
