Dissertations / Theses on the topic 'Débiteur et créancier'
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Ansaloni, Guillaume. "La situation du débiteur dans les opérations portant sur des créances." Paris 2, 2006. http://www.theses.fr/2006PA020026.
Full textCondamin-Meunier, Élisabeth. "Les devoirs du créancier à l'égard de son débiteur." Dijon, 2000. http://www.theses.fr/2000DIJOD008.
Full textL’étude de la loi et de la jurisprudence révèle que le créancier a de nombreux devoirs qui se manifestent, aussi bien en matière contractuelle, durant l'exécution du contrat ou après l'inexécution c'est-à-dire après la survenance du dommage, qu'en matière extracontractuelle. Le créancier doit donc être de bonne foi, à savoir loyal et honnête, et raisonnable c'est-à-dire qu'il doit être diligent, circonspect et modéré. Il doit savoir agir et réagir, conformément à un ensemble de normes de comportement dont l'application est placée sous le contrôle du juge qui, pour les apprécier, dispose de pouvoirs, modérateur et souverain, plus étendus. Nous insistons sur le terme devoir et non obligation car les contraintes du créancier n'ont rien à voir avec le contenu de l'obligation issue du contrat ou de l'obligation née de la loi, du délit ou du quasi-délit. Ces devoirs se rattachent à l'effet ou à la force obligatoire de la relation juridique qu'ils transcendent et s'imposent au créancier sans contrepartie à la charge du débiteur. Les devoirs du créancier ont en commun un certain nombre de caractères : ils ont une nature extra contractuelle, constituent un ensemble de standards de comportement reposant sur des fondements moraux et techniques et sont sanctionnés par des mesures civiles traditionnelles et par des peines privées, qui présentent la particularité de pouvoir être à la fois préventives, répressives et satisfactoires. La force de ces devoirs réside dans l'homogénéité de leurs caractères et dans l'efficacité des mesures qui en assurent le respect. C'est pour cette raison que nous pouvons dire qu'ils ne sont pas catégoriels mais forment, désormais, une véritable catégorie. Dès lors, ne serait-il pas logique et souhaitable que le législateur achève cette évolution et enrichisse notre droit positif de dispositions officialisant ces devoirs à l'instar des pays anglo-saxons et d'autres pays européens ?
Cimamonti, Sylvie. "L'effectivité des droits du créancier chirographaire en droit contemporain." Aix-Marseille 3, 1990. http://www.theses.fr/1990AIX32003.
Full textThe effectivity of simple contract creditor's rights has been reinforced in substantive law as for volontary enforcement as forced enforcement. The effectivity is nevertheless coming up against a double limit. Exterior limit with the protection of the debtor and his others creditors; intrinsic limit more directly imposed to simple contract creditor himself
André, Christophe. "Le fait du créancier contractuel." Paris 1, 2000. http://www.theses.fr/2000PA010288.
Full textRonget, François. "Essai sur le droit de l'endettement des particuliers." Université Paris-Est Créteil Val de Marne (UPEC), 2002. http://www.theses.fr/2002PA12A001.
Full textMouloungui, Clotaire. "L'admissibilité du Profit dans la Subrogation." Tours, 1993. http://www.theses.fr/1993TOUR1001.
Full textA recourse deriving from subrogation higher than the price paid for obtaining a credit in subrogation holds a threat for the other creditors of the debtor. Because their rank on the list of creditors could then turn up worse than logically forseeable. In other words, the amount's limitation of the recourse doesn't make itself clear by the benevolence, by the modest amount of 'personal recourses', or by an arbitrary hostility towards the realization of a benefit by the new creditor. So, in the absence of risks for these third parties, the recourse will exceed lawfully the price paid. For example, when the former creditor has agreed to less than his due. Or else, when the attachments and the facilities of credit collection prove to be lucrative : escalator clause, compel, and so on. Finally, subrogation, espacially, that consented by the creditor will become an incomparable tool of credits' handing down. Because, as it is, it offers immediate validity of conveyance, impossility to refuse to pay relatively to the former creditor, neutraly of 'property's reserve clause' and possibility of carrying away civil, commercial or mixed obligations
Hardy, Christophe. "Les droits du débiteur en redressement judiciaire." Reims, 2005. http://theses.univ-reims.fr/exl-doc/GED00000261.pdf.
Full textIn collective proceedings, the rights of the debtor seem to be sacrificed on the altar of employee, company and creditor interests. Bankruptcy is no exception to this assessment that, however, proves to be erroneous. Far from being considered a second- class citizen, the debtor is the key figure in these proceeding and, when all is said and done, his rights are similar to those of a person in bonis. In fact, the appointement of a receiver, rare under the simplified procedure, and focused more on oversight and assistance under the general procedure, no longer places the debtor in a position of being an outsider in his reorganization. In terms of his business activity, the performance of certain acts, although they are subject to prior judicial authorization, does not completely abolish his rights. These rights are expressed mainly through the filing of appeals and the possibility of engaging in a new business. In terms of his private life, the exercise of his personal rights remains solety within his domain. However, the property consequences of these rights concern the court- appointed agents, who do not, however, intervene in purely personal matters. The legal mechanisms, derived from civil and commercial law, further safeguard his rights. Thus the debtor in bankruptcy proceedings has nearly the same prospects as his counterpart in bonis
Ould, Lebatt Mohamed El Hacen. "La Protections des créanciers chirographaires : essai d'une formulation synthétique." Toulouse 1, 1987. http://www.theses.fr/1987TOU10007.
Full textThe protection of the insecured creditor amounts, on a static level, to the law on general security. On a dynamic level it consists in new prerogatives which are inspired by surety law
Mas, Marion. "Patrimoine du débiteur et actif de la procédure collective." Thesis, Toulouse 1, 2015. http://www.theses.fr/2015TOU10065.
Full textSoweng, Dieudonné. "La protection du débiteur en droit des contrats de l'OHADA." Nantes, 2014. http://www.theses.fr/2014NANT4008.
Full textAs paradoxical as it may seem to be, the protection of a contractual debtor has proven to be a necessity under the OHADA law of contracts like in some other contractual systems. It is imposed for the sake of re-establishing equilibrium or contractual justice, which may be disrupted due to inequality of parties and which is susceptible to affect the main purpose of contract. It is also imposed in order that, legal security, one of the main objectives for the institution of OHADA, should be preserved and consolidated. The antagonism of interests in a contract - the interests of the creditor faced with that of the debtor, individual interests against general interests - should in no way justify the overprotection of one party to the detriment of the other. The classic rules of the general principles of contract appeared to be more generous in favour of the creditor. It became necessary to harmonise contractual relations through elaboration of rules which, though undermining the fundamental principles consecrated such as the obligatory nature of contract, are such as to give a humanist outlook to contract. This helps to ensure that a debtor as a human being is not sacrificed as was the case under the old law, on the altar of efficacy of law, in favour of the legal security of the creditor. Nevertheless, it is not the question of militating in favour of establishing “a right for the debtor not to pay his debts”, which would be a resolution of contractual injustice favourable to the debtor by creating another detriment to the creditor. It is rather suitable to take measures to ensure that what is demanded from him is what is humanly and reasonably required; and even in case of default in his contractual obligations, that the sanction should not be such as to entail his annihilation and consequently his eviction from the domain of contractual business. This is in need to promote rules sufficiently conciliatory of divergent contractual interests, in order to give to the institution of contract its raison d’être, the vector for the growth of economic activity. The OHADA law of contracts cannot avoid this requirement without failing in its original mission, which is that of being a catalyser of economic development of member states of this booming legal sphere
Morvant-Roux, Solène. "Processus d'appropriation des dispositifs de microfinance : un exemple en milieu rural mexicain." Lyon 2, 2006. http://theses.univ-lyon2.fr/documents/lyon2/2006/morvant_s.
Full textThe ideology that underscores microfinance in the South is the establishment of fair and effective means through which to liberate the poor from bonded informal financial relations symbolized by the moneylender who exploits his clients’ lack of access to funds by imposing extreme interest rates. Departing from the usual focus on residual and temporary approach of informal financial arrangements adopted by mainstream economic theory, this study analyses the interactions between the exogenous supply of financial services provided through microfinance institution and the informal debts and debt claims relationships that preceded their existence. The study was conducted in some small villages located in the remote regions of Southwest Mexico. Qualitative and quantitative analysis of the data challenge the assumption of substitution effect posited in standard economic theory by revealing the existence of critical interactions between formal and informal credit institutions. In effect, households access both microcredit and informal financial institutions in order to mobilize greater resources and gain flexibility in the management of different income sources. Thus, the relation is dialectical and not unilateral. The insertion of microcredit into management of liquid assets has to be analysed as both a collective and an individual appropriation process. On a more practical level, these results also highlight the need for microfinance institutions to take into account not only economic but also social inequalities in order to include the poorest of the poor
Mottet, Adeline. "La Caution personne physique." Chambéry, 2005. http://www.theses.fr/2005CHAML020.
Full textGérard, Stéphanie. "Les obligations contractuelles de ne pas faire." Nancy 2, 2000. http://www.theses.fr/2000NAN20011.
Full textZepi, Sandrine. "Le sort des créanciers titulaires de garanties réelles dans le droit des procédures collectives." Nice, 2004. http://www.theses.fr/2004NICE0030.
Full textThe commencement of the proceeding of bankruptcy will throw the legal fate of the corporation's créditors into confusion. The lot of creditors provided with standard real sureties gets encysted by the law of bankruptcy proceedings i. E. The security contracts will be subject to modify the accomplishment of personnal rights. The essential characteristics of standard sureties which may be useful are the right of pursuit and the right of good ranking prior to others creditors. On the other hand real sureties enforced by a right of retention and real warranties award titulars much diverse and efficient rights. In the existing circumstances of the french positive law, it appears that the rights and the obligations inherent to ownership and possession seem to be a most efficient safeguard for the rights of creditors. A strong comeback of archai͏̈c practises and rules is to be brought about. Considering that the bankruptcy law can be put into failure by well-tried technics, we infer that creditors provided with simple sureties are not in the most comfortable position. Only real sureties can properly comply with the requirements of creditors. Though creditors are the providers of assets and the whole economy depends on them ; but nowadays they are knocked about in case of collapsing of corporation. Therefore the legislator ought to take those facts in consideration. It may be desired that the legal texts may be retrofited. In this end the last changes of the right of property and the right of sureties may be integrated in the reform and precede the relevant debate
Mozas, Philippe. "La notion de dette en droit privé." Bordeaux 4, 1996. http://www.theses.fr/1996BOR40001.
Full textThe debt is a complicated notion. The debt contain several aspects : subjective, patrimonial (then objective),imperious, moral. Thanks to the dualist analysis of obligations, the debt's aspects are understood better. This study show the importance, nowadays, of its patrimonial aspect and the necessity to distinguish the debt and the responsibility of the debtor
Desmichelle, Marc. "Les créanciers qui échappent aux conséquences de la procédure collective de leur débiteur." Paris 1, 1994. http://www.theses.fr/1994PA010270.
Full textObviously, the law of 25 01 1985 relating to firms bankruptcy, does not allow the payment of the creditors. However, there are some of them who escape the consequences of the law and can be quickly paid. This work tries to find out who are those creditors the reasons of their prerogatives, and the way they can obtain payment of their credit within or beside the law of 1985
Hélaine, Cédric. "L’extinction partielle des dettes." Thesis, Aix-Marseille, 2019. http://www.theses.fr/2019AIXM0526.
Full textPartial extinction of debts still occupies a discreet place in the French civil Code. It could almost be relegated to a transient difficulty. The new article 1342-4 of the civil Code – old article 1244 prior to the new legislation of 2016 - provides a striking illustration of this, as a principle that the creditor may simply refuse partial payment. However, cases of partial extinction are multiplying in case law and practice. More importantly, the law increasingly makes specific exceptions to 1342-4, including through grace measures or rules governing business effects. The interest of the subject is based on this assumption: there is a discrepancy between the classic view of partial extinction and its current interest renewed by our society of debts. Defined as the non-retroactive disappearance of a quantum of the obligation to allow another part to remain, the partial termination is paradoxically based on the satisfaction of the creditor. The subsistence of a quantum of the obligation differentiates, in fact, partial extinction and total extinction: the creditor remains awaiting part of the debt
Abdelkader, Osman Osman Mohmed. "Le traitement des difficultés financières du débiteur civil : étude droit français et de droit égyptien." Paris 1, 2009. http://www.theses.fr/2009PA010264.
Full textStasi, Alessandro. "Les créanciers postérieurs confrontés au redressement en droit français et en droit italien." Nice, 2011. http://www.theses.fr/2011NICE0020.
Full textIn recent years, Italian and French insolvency laws have been revised to encourage viable businesses to restructure rather than to go bankrupt. Under the new Law, loans granted during the observation period in reorganization proceedings benefit from favorable treatment. In particular, creditors are entitled to a new privilege in France while a priority payment is cknowledged by the Italian debt reorganizationagreements. In this study, we compare these two models in order to better understand the solutions adopted. Despite many differences in detail, there appears to be many hidden similarities (the common core) in the actual legal treatment accorded to creditors
Houssin, Mathias. "La subordination de créance : analyse de la subordination à l'épreuve de la procédure collective." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D033.
Full textDebt subordination is the operation whereby a junior creditor agrees to be paid only once the senior creditor has been fully paid. The efficiency of the mechanism in bankruptcy depends on the chosen analysis. It is possible to consider that it changes the claim itself, or that it affects it indirectly. Our research shows that subordination affects a claim exogenously as it is built on the addition of personal liens impending on the junior vis-à-vis the senior creditor: subordination does not alter the right to payment but only its priority. Hence, an imbalance appears in the solicitation of creditors, since one euro of junior debt confers the same voting rights as one euro of senior debt: until a reform of the system of creditors committees, the survival of the subordination will only be made possible by voting agreement between creditors when these maintain the junior claim. From the debtor’s perspective, subordination does not modify the structure of a debt, but only changes the rules of payment. Unless an agreement is found between creditors, the waterfall payment should therefore force the respect of the absolute priority rule in the plan, because it does not violate any rule of equality between creditors. Exceptions should be accommodated in case of conflict between creditors, in order to optimize the rescue of the debtor, but still in respect of the structure of subordination. The indirect alteration of the junior claim accounts for the neutrality of subordination on the ranking itself of the claim, and explains that the liquidator cannot, de lege lata, apply the subordination agreement in the distribution of the assets, while the inapplication of the mechanism in the plan will offer little defense for the senior. Overall, the efficiency of debt subordination is uncertain because the mechanism affects a claim exogenously: this requires, upon solicitating the creditors, but also during the elaboration of the plan and in the distribution of the assets, that subordination passes into law in order to give effect to the mechanism
Populin, Deschamp Claire. "Le concept fonctionnel de cause de paiement : essai sur une analyse renouvelée du paiement." Nancy 2, 2006. http://www.theses.fr/2006NAN20014.
Full textThe harmonization within Europe on national law, the prospect of a European Cicil Code as well as the preliminary draft of the Civil Code reform show how important it is to modernize the French Civil Code, especially the law of ontracts, essential field in which payment has a specific place and plays considerable role. The present work offers a detailed renewed analysis of payment. The hybrid nature of the payment, and the considerable importance of the will of the parties in respect of the role on the law of obligation, reveal the complexity of the legal act of payment as well as the need to understand the interactions between its objective and subjective elements. The cause of the payment, linking these two types of elements, is seen as a real functionnal concept. It is a new way to understand the notion of payment. This casual approach allows a critical analysis of the general regime of the payment : supremacy of the nation of satisfaction of the creditor, danger implied by the right o third person to extinguish an indebtness, importance of the function of framing related to preliminary obligation of the question of proof of payment, characteristics of the contractual inexecution, coherence to give to the notion of undue payment and to the regime of refund claim. Finally, the concept of cause of the payment extends to the mathods of the payment, at two different levels : elaboration of a general theory about payment orders executed by the banker and aknowledgement of the recourse to evocatory action against suspected fraudulent payments
Picod, Nathalie. "La remise de dette en droit privé." Toulouse 1, 2011. http://buadistant.univ-angers.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D5442%26nu%3D123.
Full textAlthough the remission of debt is present everywhere, paradoxically it remains undefined by the law. It appears as a voluntary discharge granted inter vivos or mortis causa, for reward or free of charge, concerning all or part of the debt, whose object is to extinguish it. By definition conventional, it should be distinguished from the renunciation. Therefore, the legal model shouldn’t be bypassed by parallel mechanisms, such as the renunciation of the creditor’s right, at the risk of weakening the coherence of the release by turning it into a mere alternative mechanism. Moreover, the conventional discharge differs from those legal and judicial, which do not constitute real releases for lack of the element “will”. But the demarcation line is not so obvious, due to the graduated interference from the judge in the consent of the parties within insolvency proceedings. The infinite richness of the release shows itself by a plurivalence of its functions. Far from being an abstract act, the remission implies a consideration. The object of the release – extinction of the debt – merges with its extinctive effect, since the extinctive mechanism absorbs any other effect. Such a mechanism leaves a large place to the deployment of the parties’ will, who can modulate it, not without tax consequences. This modulation concerns the debt, but also the persons who are related to it in main or secondary title. In an incomplete way, the French Civil Code allows us to determine the extent of the releasing effect, ratione personae, in the absence of will expressed by the parties. We suggest a coherent legal regime rooted in the common body of law and taking into account insolvency proceedings
Richard, Anne. "Le paiement de la dette d'autrui." Aix-Marseille 3, 2006. http://www.theses.fr/2006AIX32031.
Full textThe payment of other people’s debt, on account of the otherness which characterizes it, shows a distinctiveness in its nature. First, unlike the debtor, the other person is unable to forthwith comply with the potentialities of the binding bond. Though he can fulfill the material expectation of the creditor, he is, however, incapable of accomplishing the duty aspect integrated in the obligatory relation. Therefore the bond still has a reason to exist further to his intervention. Only the subrogation, by the substitution of the persons which it carries out within the binding relation, generates the very fulfillment of the latter. Furthermore, the inherent otherness in the payment of another person’s debt discloses, for the time being, an unsuspected dimension of the payment. While the payment which is made by the debtor is purely and simply extinctive, the payment of another person’s debt gets its specifity in bearing a new obligation, which is able to enlarge the initial compulsory bond
Randoulet-Philippot, Caroline. "Le créancier dans la procédure de saisie du logement." Electronic Thesis or Diss., Toulon, 2017. http://www.theses.fr/2017TOUL0118.
Full textOur legal system in France reveals a discrepancy between rights and obligations whereby the creditor is plunged into a much more critical situation as compared to the bad faith debtor. The magnitude of the economic crisis that has lasted for more than a decade has causes a climate of considerable uncertainty. The failure to comply with the obligation of execution of contracts proves to be one of the main consequences, particularly the violation of the debtor’s duty to the creditor. Therefore regulations, in which lawmakers condemn the failure to meet contracts in order to secure a balance between parties, have become the main issue. However, despite a drastic and positive evolution in our legal system it appears when following the situatio more carefully that the debtor was in fact granted with numerous privileges. In fact, in our current legal system and economic situation the creditor’s position shows signs of weakening. This is an issue of concern. Investments are thus moving abroad, benefiting other European member states and resulting in a dip in our own national economy. As this is an eestablished fact, it is necessary to consider the various main obstacles in the legal framework, which the creditor has to overcome. One example is the case of a debtor’s family property seizure. The term « obstacles »refers to the contraint satisfaction process, before and during the seizure procedure, preventing the creditor from recovering her/his outstanding debt. As a matter of fact, the lasting unfavorable economic situation supposes to consider solutions in order to better balance forces, including changes in the legal framework
Viala, Ysaline. "Le principe de l' égalité entre les créanciers dans le redressement et la liquidation judiciaires des entreprises." Toulouse 1, 2001. http://www.theses.fr/2001TOU10081.
Full textIs the principle of equality of creditors still the "soul" (or "spirit") of the law on collective creditors' remedies ? The evolution of French insolvency law has seen two trends in relation to this principle : a tred of extending the application of this principle with regard to the creditors affected ; a trend of decline in the very application of this principle
Sénéchal, Marc. "L'effet réel de la procédure collective." Toulouse 1, 2001. http://www.theses.fr/2001TOU10071.
Full textThe effect of bankruptcy proceedings on the debtor's property may be defined as the seizure of the property by the creditors as a collectivity represented by the receiver. First, it seeks to determine the scope of the effect of bankruptcy proceedings on the debtor' s property through a comparaison with seizure under ordinary law. Second, this study intends to discover how the concept of collective seizure under bankruptcy law overcomes the diversity of the seizures effected by the creditors. This study shows that these disparities between seizures are not treated in the same way according to whether bankruptcy proceedings are directed against the debtor' s property or against a third party' s property
Ophèle, Claude. "L'exécution anticipée d'une obligation contractuelle." Tours, 1993. http://www.theses.fr/1993TOUR1009.
Full textThis thesis aims to study how anticipation is a way to execute a contractual obligation, i. E. A payment. Beyond the heterogeneity of the solutions taken up by the law, a real consistency emerges. Refering to various contracts (such as loan, guarantee, letter of credit, building contracts) the thesis proposes a review of the law related to the anticipatory execution. Anticipatory execution is accepted (part one) when the interest of one of the contracting parties, either the creditor imposing the anticipation to the debtor, of the debtor deciding to advance his payment, prevails over the date of execution. On the other hand, anticipatory execution is actually rejected (part two) only when it is required by the protection of a debtor, especialy when he is a consumer
Nigam, Nirjhar. "Essays on corporate default process : UK and France." Strasbourg, 2011. https://publication-theses.unistra.fr/public/theses_doctorat/2011/NIGAM_Nirjhar_2011.pdf.
Full textThe thesis has been conducted upon two unique and primary databases manually collected through courts and various reliable sources (governmental and non-governmental offices). This is the major strength of this thesis. With such databases, we built individual statistics on the corporate bankruptcy process for two major European countries (France and United Kingdom). To the best of our knowledge, the UK database has no equivalence and we are the pioneers of including real world data on liquidations in our research database. For both countries, the collected data deals with the causes of financial default, the recovery rates of creditors, the process of decision making at the time of default, the efficiency of such decisions, etc. Such research project helps in distinguishing the origins of corporate financial default and in distinguishing whether they are independent of the national bankruptcy code or not. Additionally, we were actively involved in constructing new legal indexes for corporate bankruptcy law in France and UK. And it is notable that we succeeded in computing the most comprehensive legal indexes till date. These legal indexes consist of more than 300 questions that explain the particular function of bankruptcy. In order to empirically test the effect of legal environment on economic behaviors and financial outcomes, we consider these indexes as explanatory variables of the variables that were hand collected in France and UK. This makes this thesis unique as it is composed of original sources of information. The thesis is composed of several essays (chapters) on corporate bankruptcy. The general organization of these chapters tries to capture the default process, viewed as a sequential process beginning from the arbitration between private and formal solutions and progressing onto the formal design of the legal solution and finally concluding by explaining the financial effects of legal indexes on various creditors
Rizzi, Aldo. "La protection des créanciers à travers l'évolution des procédures collectives : contribution à l'étude de la notion de protection comme élément identitaire du droit des procédures collectives." Perpignan, 2003. http://www.theses.fr/2003PERP0496.
Full textThe evolution of insolvency proceedings remains related to the advent of the judicial business theory. From now on, the treatment of insolvency is no longer restricted to the sphere of the creditors and the stakes linked to the fate of the company in difficulties concerns the entire community. This widening of the perimeter of the proceedings leads to reshaping the relation between the creditors and the debtor so as to assess the set sacrifices through an innovative approach. The accomplished transformation testifies to the capacity of the matter to generate its own rules to correct excesses of the legal system. In spite of the objectives first and foremost assigned by the law, the presence of a continuum is thus no longer questionable: the defence of the common interest summarizes the essence of it. The permanence of the protection of the creditors thus attests to the value as identifying element of the matter
Laforest, Tacchini Valérie. "La procédure de traitement du surendettement à l'épreuve des régimes matrimoniaux." Chambéry, 1998. http://www.theses.fr/1998CHAMD001.
Full textThe spouse plays a disturbing role in the procedure of over- indebtedness, this phenomenon depends on the existence of the matrimonial bond between two individuals who can't be considered unfamiliar. When the spouses come in together in the procedure appears a common will to remedy at a situation of overindebtedness however hindrances will arise sometimes, going against of this will if one of them is excluded because of his quality of professionnal or because he is in bad faith. The global treatment, if it is faciliting the work of the instances who are treating the overindebtedness musn't evade the fact that the seekers are two individuals who can have different aspirations. In this way, one of them will be about to take personal initiatives in the procedure, won't execute the obligations of the procedure, or will execute forbidden deeds who will compromise the procedure of overindebtedness. Nethertheless, difficulties are more considerable when one spouse come on in the procedure of overindebtedness. He can cause a crashing into the procedures when the other spouse wishes to start a collective procedure of the same type. The existence of the matrimonial system complicates the development of the procedure. It plays a disturbing role as for the examination of the situation of overindebtedness of the seeker. He will allow the credito to sue the spouse outside of the procedure, and put in danger the procedure. The matrimonial rules permit at each spouse to have some proxies who will in some circonstancies, thwart the normal issue of the procedure. They will however play a regulating role because they plan limits at the contract of the overindebted but it offer also all an arsenal of arrangements to manage the crisis in the couple
Toubal, Sarah. "Le rebond du débiteur : contribution à l'étude du droit de la défaillance économique." Electronic Thesis or Diss., Université de Lille (2022-....), 2022. http://www.theses.fr/2022ULILD023.
Full textWith the systematic use of credit, the harshness of competition and the intensity of crises, default is aphenomenon that has become widespread to the point of becoming commonplace. It appeared very soon that theexclusion, neutralization, and humiliation of the defaulting debtor paralyzed the effectiveness of the law. By relievingthe debtor in difficulty from the burden of debts that would crush him in the long run, the law doesn’t exclude compassionat all. It certainly is essential to protect the creditor by respecting the word given, but it is also necessary to safeguardthe interest of the debtor in order to avoid the economic and social disorders that would result from their exclusion. Formany years, this concern for protection has been combined with a new preoccupation of the legislator: to offer theimpecunious and honest debtor the right to "bounce back". Indeed, contemporary law no longer holds a grudge againstthe debtor who failed in good faith. Promoted to the rank of subject of specific law, the law of economic failure gives ita privileged status. The choice of a combined study around the rights of distressed companies and over-indebtedness isjustified by the similar orientation they have taken in favor of “the second chance”. The institution of several accelerateddebts purge procedures reflects the legislator's desire to quickly get the debtor back on track so that, after the purge ofhis liabilities, he can make a new start. If the object of the study tends to demonstrate the existence of a right to reboundfor the impecunious debtor in good faith, it will still be necessary to verify its effectiveness. Is the goal truly beingachieved?
Randoulet-Philippot, Caroline. "Le créancier dans la procédure de saisie du logement." Thesis, Toulon, 2017. http://www.theses.fr/2017TOUL0118/document.
Full textOur legal system in France reveals a discrepancy between rights and obligations whereby the creditor is plunged into a much more critical situation as compared to the bad faith debtor. The magnitude of the economic crisis that has lasted for more than a decade has causes a climate of considerable uncertainty. The failure to comply with the obligation of execution of contracts proves to be one of the main consequences, particularly the violation of the debtor’s duty to the creditor. Therefore regulations, in which lawmakers condemn the failure to meet contracts in order to secure a balance between parties, have become the main issue. However, despite a drastic and positive evolution in our legal system it appears when following the situatio more carefully that the debtor was in fact granted with numerous privileges. In fact, in our current legal system and economic situation the creditor’s position shows signs of weakening. This is an issue of concern. Investments are thus moving abroad, benefiting other European member states and resulting in a dip in our own national economy. As this is an eestablished fact, it is necessary to consider the various main obstacles in the legal framework, which the creditor has to overcome. One example is the case of a debtor’s family property seizure. The term « obstacles »refers to the contraint satisfaction process, before and during the seizure procedure, preventing the creditor from recovering her/his outstanding debt. As a matter of fact, the lasting unfavorable economic situation supposes to consider solutions in order to better balance forces, including changes in the legal framework
Alquier, Alexandre. "La loi de sauvegarde des entreprises en difficulté : sauvetage des entreprises ou protection des créanciers ?" Aix-Marseille 3, 2006. http://www.theses.fr/2006AIX32002.
Full textIn our modern market economies, the collective procedures play an essential part. The legislator of 1985 there had already not been mistaken and had introduced a right in adequacy with economic diagrams of its time. In twenty years, the economy has deeply moved and this right, which leads to 95% of bankruptcies, is not there more adapted. The legislator of 2005 marks, with " law of safeguard of the companies in difficulty ", a will to break with this acknowledgement of failure. Taking as a starting point the Chapter Eleven American, but also in tie lesson of the errors of the past, it reforms the whole of the right of collective procedures by supporting anticipation massively there and in giving again a place activates with the creditors, often abused under the empire of old law. Present study more particularly approaches this important reform with through prism of the creditors. The success of this law, which necessarily passes by a change of mentalities, contains without question of real innovations and should result in giving again with the creditors a major role in these procedures
Refait, Catherine. "Relation banque-entreprise : asymétrie d'information et impact sur le risque de faillite." Paris 1, 2001. http://www.theses.fr/2001PA010007.
Full textFerrari, Benjamin. "Le dessaisissement du débiteur en liquidation judiciaire. Contribution à l'étude de la situation du débiteur sous procédure collective." Thesis, Université Côte d'Azur (ComUE), 2019. http://www.theses.fr/2019AZUR0018.
Full textDispossessing a debtor in liquidation proceedings, that is the interesting question which naturally appears in such situations. At the start of the proceedings, the debtor must hand over the ability to exercise his rights and take actions over his assets to the liquidator. Even though the notion of dispossession is omnipresent, it remains an unclear notion nonetheless. Firstly, the type of procedure and the governing legal regime are not mutually exclusive. Secondly, it is indeed only the analysis of the creditor’s common pledge that allows us to understand dispossession. The link established between the two notions asserts that the fragmentation of the common pledge leads to a correlative weakening of the dispossession. If the dispossession is objectively dependent on the fluctuations of the real effect of the proceeding, it is furthermore the rights retained by the debtor that will have an impact on the substance of the measure. Respecting the entrepreneur’s fundamental rights restricts the effect of dispossession on the debtor’s procedural rights. These considerations contribute to the implementation of the European requirements in this area, and more specifically, the debtor’s right to a fresh start. In such conditions, the longevity of the dispossession raises other questions. We must decided between a pronounced anachronism of dispossession or the necessary evolution of the notion – to dispossess or not to dispossess, that is the heart of the question under study
Laugier, Maxence. "Les créanciers "hors procédure" ou La fuite des créanciers devant la discipline collective." Lille 2, 2002. http://www.theses.fr/2002LIL20005.
Full textThe "hors procédure" creditors, as named in French doctrine, are literally creditors "out of the Bankruptcy Procedure", bypassing the French Bankruptcy Procedure. They appear as a hybrid category of creditors prompted by a desire to flee the common discipline, which is usually associated with the fact of being a prejudgment-creditor. This flight particularly materializes through the dismissing of the bankruptcy concept of the automatic stay, revealing more generally the relative lack of concern during the bankruptcy procedure for the interests of creditors. The success of these creditors in avoiding the bankruptcy procedure especially hinders the debtor's rehabilitation goal as well as the collective and egalitarian feature underlying French bankruptcy law. The threat of bypassing-creditors, when jeopardizing the procedure, forces Bankruptcy Law to preserve itself, and hence to clarify its essence. .
Billiau, Marc. "La délégation de créance : essai d'une théorie juridique de la délégation en droit des obligations." Paris 1, 1988. http://www.theses.fr/1988PA010279.
Full textFrançois, Pascal. "Applications de la théorie des options à l'analyse de contrats de dette." Paris 1, 1999. http://www.theses.fr/1999PA010057.
Full textOnanga, Romuald. "Le retard dans l'exécution du contrat." Nancy 2, 2002. http://www.theses.fr/2002NAN20002.
Full textTraditionally, the dogma of the autonomy of the will dominated and explained the general theory of the contract. The contract appears as a means given to the parties to exercise a certain influence on the future, to prevent the appearance of the unpredictable. In this context, the payment when due is an economic imperative with which one should not compromise. Any delay brought by one of the contractant parties from then on, engages automatically its contractual liability for the penalty of which, a multitude of possibilities is left with the discretion of the creditor, and specially the condemnation to suspended damages. This traditional vision is questioned under the influence of a new more humanist doctrinal tendency today, which recommends the softening of the rigour of the contractual link. So, confronted with the new requirements of the modern society, and helped by these new theses favourable to a softening of the rigour in the execution, the legislator helped the late debtors, by granted them a right for the delay being translated by terms of payment allowing them to face their commitments. It appears while the question of the delay in the execution of the contract oscillates between the rigour in the execution recommended by the modern doctrine. Indeed, on one hand, on the base of the system is the rigorous requirement of the old solutions, which naturally, are certainly considerably eased, but lived present in substantive law because from this point of view, the delay constitutes a neglect in the contractual obligations and is sanctioned as tel. But in what proportions does this principle live, and what is its force in the current system? It is the answer to these questions that is usual the first part of this work. On the other hand, in spite of maintains some execution rigorous as principle, the contemporary tendency recommends the softening of this rigour, and it finds a favourable echo at the legislator who organizes measures of favour towards the late debtor. These favours are translated in substantive law by the emergence of a right for the delay recognized by the debtor in trouble, whose question it is in the second part
Gounon, Stéphane. "L'insolvabilité en droit privé." Lyon 3, 2004. http://www.theses.fr/2004LYO33008.
Full textThe notion of insolvency is generally understood in a static way and is regarded albeit as a case where a debtor stops insuring payment. The Law of Insolvency puts this notion into perspective : one's mere inability to satisfy creditors claims in consideration of his current estate at given time does not amount to insolvency which is hence best defined as a situation where the insolvent remains unable to repay his debt in spite of remedial measures granted to alleviate the debt. In criminal law, the notion is understood as the situation where one's is unavoidably prevented from repay his debt ; this impossibility does not necessary result from a lack of assets. The state of insolvency severely reconsiders the legal principles of the binding force. Latest statutory developments are now insisting on not depriving the insolvent from his fundamental rights : insolvency does not entail any restriction to one's legal capacity but just result in practical impossibility of payment
Amphoux, Cécile. "Le crédit judiciaire." Paris 1, 1998. http://www.theses.fr/1998PA010304.
Full textThe concept of judiciary credit could be taken from modern economy and companies or banking law. Although the notion of consuming credit is understood as something usual, it is still the classical way to make a debtor access to indebtedness or over indebtedness position. Under french common law, that situation implies the intervention of judiciary power. In that context, the executive judge competent for physicals person or the commercial court concerning companies in general are likely to pronounce a judgement added of different measures which the opportunity is freely appreciated by the court. Those measures can be identified as granting payment delay to debtor, modification of the term of the debt, acting directly o, the amount of the debt. The choice would be made in the perspective of reducing the amount on the one hand or by cancelling the amount on the other hand. Nevertheless, those legal mechanisms lead to constitute an attempt to contract law autonomy and by the way to contractual liberty of the parties
Sautonie-Laguionie, Laura. "La fraude paulienne." Bordeaux 4, 2006. http://www.theses.fr/2006BOR40010.
Full textFiron, Jean-Louis. "Les sanctions atypiques du manquement à l'obligation de délivrance dans les ventes commerciales." Nancy 2, 2004. http://www.theses.fr/2004NAN20005.
Full textDeffains-Crapsky, Catherine. "Dette mezzanine et structure d'endettement." Nancy 2, 1994. http://www.theses.fr/1994NAN22023.
Full textThe aim of the thesis is to point out the opportunity to use mezzanine finance within financial operations using high debt level. Mezzanine debt is an intermediate type of finance between senior debt and equity which is characterized by intermediate risk and return and a repayment subordinated to the senior debt one. The different characteristics of this mean of finance have been analyzed : law, practice and theory. It allowed to develop, within the contingent claims analysis, a mathematical model. This Model allowed to determine an optimal debt structure and to analyze the relationship between the asset risk and the debt structure characteristics. Simulations and the analysis of two French mezzanine finance operations allowed to illustrate the theoretical results
Mafeuguemdjo, Blandine. "Etude comparée en droit OHADA et français de la protection du créancier chirographaire d'une société en difficulté." Thesis, Nantes, 2019. http://www.theses.fr/2019NANT3010/document.
Full textThe exercise of an economic activity is a path fraught with obstacles. This is evidenced by the number of liquidations closed for lack of assets. For the year 2018 in France, there are 37,214 judicial liquidations against 16,359 judicial restatements. Similarly, in the OHADA space, despite the absence of a study to quantify the number of corporate failures, we know that the judicial liquidations remain significant and problematic. Many societies are dying without even going through a collective process, especially those operating in the informal sector. This situation is not without consequences for unsecured creditors who have no real or personal guarantee. The status of unsecured creditor does not, in most cases, result from a choice of the creditor concerned. This is a situation that is imposed on him, especially for reasons related to the cost of taking a guarantee. This situation is all the more worrying as the unsecured creditor may become, in turn, a debtor in difficulty. It is therefore important to look for a way to protect it. The first way to do this is to prevent it from being confronted with an unpaid situation, which involves preventive actions aimed at preventing, in order to avoid them, the difficulties of its debtors. In this respect, the mechanisms for preventing difficulties must be geared to better involving unsecured creditors in the early treatment of society's difficulties. On the other hand, because prevention does not prevent the occurrence of difficulties, it is important to look for ways to preserve unsecured creditors when a collective proceeding is still open. The subscription of an insurance can then be considered
Couturier, Nicolas. "La protection des intérêts respectifs du créancier et du débiteur dans la saisie en compte bancaire. Etude en droit français, allemand, anglais et européen." Thesis, Lyon, 2020. http://www.theses.fr/2020LYSE3040.
Full textEnforcement is essential for the effectiveness of a legal system. This observation, combined with the omnipresence of the bank account in the different patrimonies, motivated this study on the bank account attachment in three main European legal models: France, Germany and England. An amalgam of convergences and national specificities emerged, based on an abstract balance weighing the respective interests of the creditor and the debtor. In addition to the conflict between the creditor's right to performance and the civil enforcement proceedings, which guarantees respect for the debtor's fundamental rights, various interests that may also be present were also taken into account : public interest, competing between creditors, collective creditors in collective proceedings, etc. The balance between the creditor's right to performance and the right to enforcement was also taken into account. Moreover, the specific protection of the debtor's interest as a natural person demonstrates the search for national rights to protect the individual and his dignity. This sharing of a philosophy of enforcement raises questions with the phenomenon of the europeanisation of relations between creditor and debtor due to the internal market of the European Union. Faced with the continuing fragmentation of a legal area coordinated by the area of freedom, security and justice, the Union has already laid the first stone with the European attachment order procedure. Thanks to the analysis of the national laws studied and the analysis of European law, the development in two stages of a European attachment order for bank accounts was made possible in order to build a European enforcement procedure
Oloua, Edene Ayissi Barnabé. "Endettement bancaire et performances des PME camerounaises." Université Louis Pasteur (Strasbourg) (1971-2008), 2007. http://www.theses.fr/2007STR1EC02.
Full textIn this thesis, we have tried to analyse the relation between banking loans and performance and to suggest propositions to improve this relation in Cameroonian Small and Medium size Enterprises (SME). The main goal is how to manage banking loans in order to improve performances in SME. Therefore, two variables have been identified : the level and the quality of banking loans which depend their selves on structural and managerial features of SME. The research is presented in two parts including three chapters each. The first part is logically articulated in three levels : taking in account SME's features and banking conditions to analyse banking loans in SME in order to build a theoretical model between banking loans and performances. This model shows that a banking debt which has been well identified and which is adapted in a favourable environment, but which is also controlled, must permit performances in SME. In the second part, we need to check the reality of the relation between banking loans and performances in Cameroonian's SME. It is organised as follow : taking in account an appropriate approach of collecting real information in Cameroon 's SME, referring to their features, their banking conditions, their performances and their environment to analyse the main variables in the relation between banking loans and performances in order to appreciate by statistic tests, the degree of relation between different variables of the research model and to suggest measures for a positive relation
Brès, Aurélie. "La résolution du contrat par dénonciation unilatérale." Montpellier 1, 2008. http://www.theses.fr/2008MON10061.
Full textGamaleu, Kameni Christian. "L'implication du créancier dans les procédures collectives : étude comparée du droit français et du droit de l'OHADA." Thesis, Aix-Marseille, 2013. http://www.theses.fr/2013AIXM1057.
Full textThe research on the involvement of the creditor in bankruptcy procedures reveals a main problem: the role of the creditor in various procedures of treatment of the difficulties of company created by French system and OHADA system. In these two legal systems, different actions, rights and some favour given to the creditor during the bankruptcy procedures supports its intervention for the safeguard of its debtor in crisis. The involvement of the creditor is evident, however the involvement of the creditor is supplied by two principal constraints: constraints focus on the collective organization of the procedures and constraints focus on economic necessities.The stake of this comparative research is to invite African lawmaker to observe the solutions enacted by the French lawmaker and vice versa in order to make the creditor an important actor for the resolution of the difficulties of company in each legal system