Dissertations / Theses on the topic 'Gage (droit)'
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Bottin, Matthieu. "Gage et nantissement face au crédit." Nice, 2012. http://www.theses.fr/2012NICE0031.
Full textThe excogitation on securities and especially those drawn out of the order of March 23, 2006 have widely contributed to put an end to the situation of division and confusion surrounding the concepts of "pawn and pledge". However, these developments were insufficient in bringing about the unity and order, which are much needed for an issue that has such drastic consequences on credit as a whole. It is then by replacing "pawn and pledge" through the use of credit that we achieve unity amongst division and order is achieved in perceived confusion. On the one hand, unity in "pawn and pledge" emerges when the mechanisms and concepts inherent to these securities are refocused on two essential components of the real securities: property and safety. Both these elements bring a new prospective to "pawn and pledge" that helps understand their respective nature. On the other hand, order in "pawn and pledge" appears when it is recognized that these securities belong to the same framework of which possession is the main and central element, but that they also differ in their respective ends. A "pawn" can be perceived as a security oriented towards the necessity of safety, sometimes at the expense of the value of the property as a result of a lack of balance between the object of the security and the allocation of credit. A "pledge" however is a security focused on the value of the property, which limits the necessity of safety as a consequence of an overlap of the object of the security with the allocation of credit
Torkmanie-Ghazal, Mohammad-Ammar. "L'évolution du gage en droit français : étude comparée avec le droit musulman." Lyon 3, 2004. http://www.theses.fr/2004LYO33041.
Full textRisser, Julien. "La notion de gage général." Thesis, Université de Lorraine, 2020. https://docnum.univ-lorraine.fr/ulprive/DDOC_T_2020_0159_RISSER.pdf.
Full textWhoever is personally bound for an obligation is obligated to fulfill it out of all of his property, movable and immovable, present and future. These are the words of the article 2284 of the French Civil code introducing a fundamental notion : the common pledge. Even if it is frequently used by academics, judges and the legislator, this notion remains largely unstudied. The common pledge is, however, surrounded by topical issues : the introduction of the trust patrimony in French law, and multiple changes in family law, enforcement procedures, security law, insolvency law have transformed the common pledge mechanism. Some scholars assert these evolutions have caused the decline of the notion, if not its dissolution. Are these statements justified ? To answer to the question, the notion of common pledge has been first identified with accuracy. Then, the different evolutions that have affected it in contemporary law have been highlighted. It appears that, in private law, the common pledge has been deeply altered, whereas in public law, the notion is emerging
Demartines, César. "Du droit de gage UB Freiburg, Hs. 1382; Autograph /." Freiburg i. Br. : Univ.-Bibl, 2007. http://www.manuscripta-mediaevalia.de/hs/katalogseiten/HSK0547%5Fb239%5Fjpg.htm.
Full textBernard-Ménoret, Ronan. "Droit de rétention et sûretés réelles." Montpellier 1, 2002. http://www.theses.fr/2002MON10026.
Full textDuedra, Marion. "Les sûretés conventionnelles sur les fonds professionnels : essai d'une comparaison." Toulouse 1, 2012. http://www.theses.fr/2012TOU10074.
Full textTo operate, traders, artisans, farmers and independent professionals are frequently faced with financing needs which can be difficult to meet in the context of the current crisis. In France, a move was made recently to incorporate those professional activities as part of heritage. The reason is simple: recognizing the value of these activities creates new goods that can be used as security. Legally recognized first, the business including good will is the model for the legal recognition of artisanal and agricultural professional business as well as has been used to create a precedent for independent professional business recognition. Thus, except from the independent professional business, the other three professional businesses can be used as conventional securities. For a long time, this mechanism has been the only way for the professionals to insure their creditworthiness. In 2007, the legislature introduced a new conventional security model allowing confirming a security with a property: the “french” trust. This type of security does not necessarily lead to the dispossession of the constituent by means of a contract. The security process and the “french” trust, both allowing the allocation of a value to the secured good while maintaining its use for the benefit of the requestor, appear as two competing mechanisms which deserves a formal comparison. The present study demonstrates the convergence on the constitution and on the effects prior to their maturity as it reveals a marked difference on the efficiency on their implementation. On this last point, the “french” trust security, which arrived last, clearly dominates the standard security process and should most likely eventually end up supplanting it
Legeais, Dominique. "Les Garanties conventionnelles sur créances /." Paris : Economica, 1986. http://catalogue.bnf.fr/ark:/12148/cb366307285.
Full textBruttin, Jean. "La clause dite de sequestre et de nantissement du prix." Paris 10, 1991. http://www.theses.fr/1991PA100023.
Full textSénéchal, Marc. "L'effet réel de la procédure collective : essai sur la saisie collective du gage commun des créanciers /." [Paris] : Litec, 2002. http://catalogue.bnf.fr/ark:/12148/cb388800800.
Full textTewes, Ludger. "Die Amts- und Pfandpolitik der Erzbischöfe von Köln im Spätmittelalter : 1306-1463 /." Köln ; Wien : Böhlau Verl, 1987. http://catalogue.bnf.fr/ark:/12148/cb366260870.
Full textBlasselle, Richard. "Essai sur la notion d'action Paulienne : l'opposabilité du droit de gage général." Paris 2, 1994. http://www.theses.fr/1994PA020041.
Full textCocherel, Malik. "Les techniques légales d'opposabilité : essai d'une théorie générale." Paris 1, 2003. http://www.theses.fr/2003PA010284.
Full textPretelli, Ilaria. "La protection du droit de gage général en droit international privé : l'action oblique, l'action paulienne et l'action en déclaration de simulation." Paris 2, 2005. http://www.theses.fr/2005PA020014.
Full textSalgado, Maria Beatriz. "Nantissement et hypothèque : les garanties constituées sur le fonds de commerce dans les législations française et espagnole." Paris 12, 2000. http://www.theses.fr/2000PA122014.
Full textKakaly, Jean-Didier Yodé. "L'affectation de comptes bancaises en garantie d'une dette." Toulouse 1, 2010. http://www.theses.fr/2010TOU10055.
Full textAssign a bank account as security for a debt is a common pratice in banking circles of the ODAHA law. This raises the question of in what capacity the bank account is charged. The study should be conducted in two directions : first, the legal nature of this mechanism, then its legal regime. The legal nature is diverse, which leads to the selection of the escrow account as an alternative to unification. The pledge of security interest is necessarily the bank account, it comes as a pledge of assets (in case the account is not blocked) and a pledge of escrow account (if the account is held). This distinction controls the legal regime of the pledge of bank accounts. On the system of pledge of receivables, the analysis reveals that some of his solutions are inadequate bank account and proposes reforms. On the system of guarantee of a blocked account, the author of the thesis in its calls for urgent statutory recognition in the OHADA law
Ronzier, Elisabeth. "Le gage sans dépossession : éclairages américains pour une meilleure efficacité du droit français et international." Thesis, Paris 11, 2014. http://www.theses.fr/2014PA111013.
Full textOn March 23rd 2006, the French reform of security law introduced the « gage sans dépossession », inspired by the security interest of the Article 9 of the U.C.C. from the United- States, in order to improve the efficiency of security law in France. The enhancement is undeniable and yet but there remains room for improvement.First of all, the increased autonomy given to parties when creating and ruling a security results in its detachment from the scope of personal property. Indeed, the creditor is more entitled to the value of the collateral rather than to the good itself. Therefore, the physical content of the collateral should be allowed to change physically as long as collateral remains of same value. On the other hand, the creditor’s fictive right of retention must be enforceable against insolvency proceedings. Secondly, both the detachment of the security from its physical collateral and the preponderance of parties’ autonomy must be taken into account in international private law. Should a matter of choice of law arise, the security should be governed not by lex rei sitae, given the issues raised when applied to movable goods, but by lex contractus, on account of the contractual source of the security. As a result of its adaptability enabled by autonomy, and as a result of the ability to move the security over borders and still be enforceable, the French “gage sans dépossession” appears to be more efficient both in France and on an international level
Pasquier, Isabelle. "Les raisons de l'abandon du concept de capital social, gage des créanciers dans le droit américain des sociétés anonymes." Paris 1, 1990. http://www.theses.fr/1990PA010272.
Full textSince the middle of the 1980's, a growing trend in the United States has been the elimination of the concept of legal capital from state corporate laws. The concept of legal capital, especially the role it plays as a "creditors" cushion", has long been criticized as ineffective. As it is theoretical and arbitrary, legal capital is of little interest to creditors. Moreover, state laws based on the principle that capital is not to be distributed have not prevented this from taking place. Their regulations of corporate distributions although complex, finally allow corporations, either expressly or indirectly, to distribute their assets until the point of insolvency
Ensaad, Yanis. "Le droit français des sûretés mobilières dans le contexte européen et international." Thesis, Saint-Etienne, 2014. http://www.theses.fr/2014STETT114.
Full textSince 2006, the French law of movables securities has gone through major upheavals. The legislator tried to upgrade and make that part of French law more competitive. Essential to loaning and therefore to the economy, movables securities play a substantial role in the attractiveness of one law system over another.However, the real efficiency of those securities raises many uncertainties when a foreign element is to be taken into account. Indeed, since 1933, the French Supreme Court rules that French law is relevant when considering in rem rights of personal property located in France. This ruling leads the French Supreme Court to judge foreign securities incompatible with the key elements of the French legal system.To lessen the hostility that French law has towards foreign securities, some changes were introduced since 2006. Indeed, the law-making process, more or less inspired by what's perceived as best abroad, tried to integrate some foreign tools into French law. That is especially true for trust law which shyly integrated our legal system through the "fiducie" mechanism. Always aiming to make French law more attractive, the legislator amended the pledge. By allowing to create a pledge without delivery, the French law of movables securities became closer to US or Quebec law where you only have one security
Julienne, Maxime. "Le nantissement de créance." Paris 1, 2011. http://www.theses.fr/2011PA010311.
Full textHuang, Chaowei. "Les sûretés réelles en droit chinois et en droit français : étude de droit comparé." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020016.
Full textDuring the same period, a reform of security law had completed in France, while the Chinese real rights law which has renovated security rights in rem was about to be promulgated in China. This thesis, based on Chinese law and drawing upon a comprehensive study of laws and administrative regulations on the subject, reveals the differences between Chinese and French law and analyze their cause and effect behind similar terms and notions. Grounded on the comparative study, the thesis draws the conclusion that the Chinese system of security rights in rem requires a further reform despite the arrival of new law
Sahel, Déborah. "Les biens qui échappent à la procédure collective." Thesis, Paris 1, 2020. http://www.theses.fr/2020PA01D053.
Full textThis Ph. D. thesis is about conflicting interests. Collective discipline has to be implement when a debtor files for Bankruptcy. Consequently bankruptcy law is a disruptive law. ln theory, French law achieves some discipline by freezing all the assets of the debtor and shielding them from any foreclosure (« l'effet réel de la procédure collective»). It is the equivalent of an estate during bankruptcy in common law. This Ph. D. thesis is about what goes in and what stays out of the estate. In French law, most of the assets are insert into the estate but some of them can escape it for multiple reasons and with different means. Thus the common pledge of creditors is limited in many ways. First this Ph. D. thesis contributes to identify the allocation of assets during bankruptcy. It thereby enriches the civil law theory of estate by showing some of its limit. This Ph. D. thesis demonstrate how French bankruptcy law reduces the range of assets included in the estate of the debtor. The estate appears partitioned when the theory predicate on the contrary its unity. Indeed two sets of assets can be identify within the debtor estate those that are pledge to the creditor and those that are shielded from them. The Ph. D. points out some of the legislation failures on this matter. It also suggests to distinguish between two types of assets : those that escape and those that are removed from the estate. ln doing so it suggests the set of rules applicable to each one of them and offers some solution to improve the law
Diallo, Abdoulaye. "Protection de l’entrepreneur individuel et droits des créanciers : étude comparée droit français-droit de l’OHADA." Thesis, Poitiers, 2014. http://www.theses.fr/2014POIT3013/document.
Full textWith regard to the principle of the system of assets, the individual entrepreneur take on all his assets. In case problems occur, his creditors could seize his personal properties and business assets. This unlimited liability of the individual entrepreneur might have serious consequences, especially when he is married, in a civil partnership or in concubinage. The individual entrepreneur's fragility has encouraged the legislature, in the French as well as in the OHADA law, to create mechanisms that would give him the opportunity to put his personal assets immune from the judicial proceedings of his professional creditors. Thus, apart from any associate's appropriation, the individual entrepreneur is now able, under the French law, to keep his personal assets out of his profesional creditors' right of forfeit, through the notarized statement from seizure or the option of the EIRL. Equally, through the matrimonial systems or the technique of the trust, he may limit the rights of his creditors. However, the effectiveness of the mechanisms of protection of the individual entrepreneur is not absolute. Indeed, it is often put into question by former creditors, and even the individual entrepreneur who sometimes may renounce to it in order to get credit. Moreover, when the individual entrepreneur is subjected to a collective proceeding, the effectiveness of the protection is only but relative. The partition of expected assets or the exemption of certain personal belongings from the creditors' forfeit is questioned. Therefore, the protection offered by these mechanisms is only but fallacious, hence the need to strengthen their effectiveness. In the absence of effective mechanisms of protection, the individual entrepreneur may resort to the different procedures of prevention as an alternative to the mechanisms of protection
Colorio, Andrea. "Aspetti delle garanzie reali nella Grecia antica." Paris 1, 2008. http://www.theses.fr/2008PA010716.
Full textSereni, Manon. "Le droit pénal du crédit dans la doctrine juridique, d’une crise à l’autre (1715 – 1789)." Thesis, Toulouse 1, 2018. http://www.theses.fr/2018TOU10074.
Full textThis research is focused on the penal framework of fiduciary money in the eighteenth century, as well as a search for a correct balance between the debitor and his creditor.Fraudulent bankruptcies and personal wrongdoings, such as those of public accountants, undermine the trust that was once built up. However the circulation of paper effects remains necessary.As well as these ancient crimes, there is another, which has the appearance of being something new : gaming in stocks. Speculation is booming. As for the wear, it remains uncertain and liberal voices ask the end of the prohibition of the interest loan. The scarcity of money during wars, the pecuniary needs of an indebted State, the need to bring together a capital and entrepreneurship to develop industry and commerce, is leading to a search for new solutions. The problem of mortgages arises throughout the age of Enlightenment. The issue is addressed through legal and criminal doctrine, taking into account the economical and political context in which jurisconsults evolve thoughout time
Cassamally, Zeenat Bibi. "L'influence respective de la "Civil Law" et de la "Common Law" en droit mauricien des sûretés." Paris 1, 2012. http://www.theses.fr/2012PA010309.
Full textBouathong, Patrick. "Les universalités de droit : essai d'une théorie générale." Thesis, Paris 1, 2020. http://www.theses.fr/2020PA01D036.
Full textFrench Law has been familiar with the notion of "l’universalité de droit" - which one can call a "universal mass" - for a long time. It is often linked to collections of assets or the patrimony and it seems to have developed to a certain extent today. It is traditionally presented by the doctrine as a coherent mass of assets and liabilities. One can identify such a mass when looking at a patrimony, a trust, a securitization fund or even a ship but also when studying the undivided property or the community between spouses. All those masses of assets and liabilities seem to share common characteristics, as well as a common structure and a common role in the judicial system. Thus, it is surprising that no statute or law have ever tried to present it as a proper and unique notion. The private judicial system in France is built on the idea that liabilities are guaranteed through the debtor's assets. Studying the universal masses of the French Law system can help realizing that all of them arc created for one purpose : limiting liabilities to certain assets only. Therefore, this essay is meant to present a clear definition or the universal mass and improve one's understanding of it. This approach of the universal mass can help building a more coherent set of rules to be applied to various situations. Understanding the role of the universal mass plays an important part in creating those rules. Since creating one of these masses also creates a limitation of liability for the debtor, it is crucial to set out some ways to protect the creditor. It is a matter of balance; in a way, it is a matter of justice
Schmiederer, Morgan. "Les sûretés réelles administratives." Electronic Thesis or Diss., Toulouse 1, 2021. http://www.theses.fr/2021TOU10033.
Full textMortgage, financial lease, pledge, or assignment: public law borrows collaterals from privatelaw. The thesis suggests systematizing the interactions between private financing, securities,and administrative law. Indeed, it is profitable to maintain incompatibility between publicproperty and securities. However, the obligations that belong to the contracting parties of publicpersons, claims, and administrative real rights, can be an asset for collaterals. Obligations’peculiarities reflect upon the securities. Rules are made public, from the public securities’conditions of constitution to their realization. They are subject to the mixed influence of securedclaims, concluded between private persons, and the collateral's administrative asset. As a result,administrative rules strike a balance between general interest and private credit to make theprivate financing of public activities possible
James, Jean-Claude. "La situation des créanciers gagistes dans les procédures collectives." Dijon, 1995. https://nuxeo.u-bourgogne.fr/nuxeo/site/esupversions/1b81e902-8052-4c33-be0a-adda72c69e15.
Full textThe French 1985 act (loi du 25 janvier 1985) clearly makes the salvage of failing businesses the main concern of the law on bankruptcy proceedings. Parliament attempted to limit the rights of creditors holding securities in the form of land or property, including pledgees. The new legislation seeks to dispense with securities by cancelling them or replacing them by other form of guarantee. The legislation further seeks to wipe out or drastically curtail secured claims. Pledgees can no longer feels exercise the right to compulsory realization of the security, and even less their right to preferential payment. However, these impediments were offset by the wider scope of the techniques for realizing securities. Review of these techniques provides insight into the law concerning the equality of rights to payment on execution but also reveals major disparities among pledgees
Ta, Isabelle. "Le renouveau de l'action oblique." Thesis, Paris 1, 2018. http://www.theses.fr/2018PA01D070.
Full textThe derivative action or the right for a creditor to claim the rights and actions of their neglectful debtor to protect their ulterior payment seems so familiar one no longer pays attention to it. This lack of attention seems all the more justified in light of the reform of February 10th 2016, which rewrote the article of the Civil Code without any real modification. But in truth, this understanding of the derivative action rests on unfulfilling compromises. Its understanding is obvious only at first glance. The derivative action can neither be reduced to a conservatory or a binding measure only, as the holder of the derivative action seeks at times to guarantee an ulterior seizing of property, and at other times to recover a debt of money. But these traditional functions, for which the derivative action may not be entirely appropriate, coexist with a newer one : allowing performance for the creditor of a debt in kind and holders of similar rights. Here the derivative action could be an answer to a debtor's liability towards specific third parties. This evolution could already be foreseen in the very mechanism of the derivative action. Actually, the renewed functions of the mechanism can be explained by the renewed attention paid to the analysis of its nature. By allowing one to exert a third party’s rights, the derivative action relies not on representation but on an original right of substitution. This new analysis brings along a new definition of the extent to which one is allowed to exert a third party’s rights, as well as a new explanation about both the circumstances and effects of the derivative action
Lauvergnat, Ludovic. "L'insaisissabilité." Thesis, Paris 10, 2020. http://www.theses.fr/2020PA100055.
Full textThe undistrainability is a fundamental concept of the law of civil enforcement procedures and it concerns property law as well as contract law. Nevertheless, it seems to have difficulties finding its own distinctive identity. Positive analyses have been carried out, some of them focusing on the goods which cannot be seized, others considering the undistrainability as a derogation to the right of lien in general. These analyses are deficient and inaccurate as they create confusion with the exemption from execution, unavailability, and also the different techniques of patrimonial division.As a functional concept, the undistrainability is characterized by its purpose. It has a social function as it helps respect the debtors' dignity which is subjectively assessed through the preservation of the personal assets necessary to their subsistence and that of their families.Thus, the undistrainability concerns a restricted set of categorized goods which constitute a distinct and intangible body within the debtor's property : The unseizable assets.These special-purpose assets are submitted to specific rules elaborated from particular criteria, based on integration as well as exclusion. Last of all, the social function of the undistrainability justifies the fact that it can transcend the unseizable - and protected - asset itself, and reach a larger dimension through a new technique : The exchange seizure
Luaba, Nkuna Dieudonné. "Le contrôle des moyens financiers étatiques comme gage de bonne gouvernance économique et financière : cas de la République démocratique du Congo." Paris 1, 2010. http://www.theses.fr/2010PA010277.
Full textDauchez, Corine. "Le principe de spécialité en droit des sûretés réelles." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020059/document.
Full textThe specificity principle was introduced in the Civil code in 1804 to ensure the development of the modern economy. Then, it gained ground and became a fundamental principle of security law. However, at the end of the 20th century, it was violently criticized : it was accused to diffuse rigidity in security law and put a brake on credit. In addition to the principle noxiousness, its theoretical criticism was all the more announcing its decline in French law, because in foreign states the influence of the American security interest, which does not know the principle, was widening. However, the reform preserved, while softened, the principle in French law. The softening of the principle is the mark of a enlightened reform which is intuitively return to the principle origins to confer it the flexibility that the original legislator wanted, but which had been choked by an inadequate theoretical conception. This conception has to be renewed now. Only a return to original sources of hypothec specificity principle is able to capture its practical realty in order to lay the foundation stone of an adapted theoretical conception, which push to removing security law from patrimony rights. The specificity principle is not a sign of the archaism of real and personal security French law, it is, on the contrary, the ferment of his evolution
Kawan, Khaled. "Le Formalisme documentaire dans la lettre de crédit." Paris 1, 1990. http://www.theses.fr/1990PA010278.
Full textIn the nineteen-twenties' decade, it was established that compliance with the bank's documantary specifications must be strict. Much law was build up on these principles in the ensuing decades. During thelast twenty years of letter of credit practice, the above principle have undergone a momentous re-examination. Courts and commentators had to reassess the meaning of strictness in letter of credit law. The judicial delimna is frequently perceived to be as serious as choosing between formalism and assumed certainty of the law on the one hand and equity and uncertainty on the other. We believe this dilemna to be false formalism could be strict without falling in literality
Goût, Edouard Umberto. "Le mythe des conventions constitutives et translatives de droits réels." Thesis, Paris 1, 2015. http://www.theses.fr/2015PA010264.
Full textThe Law prior to the 1804 codification is ruled by the principle that agreements are not sufficient to establish and transfer real rights: in order to reach this result, an additional modus of acquisition, like the delivery of the thing, is required. When it is not the case, the real right, established or transferred by mere agreement, is nevertheless established and transferred erga omnes. However, since the civil code and the successive legislative reforms, the situation is no longer the same: the principle adopted is the establishment and the transference of real rights sola conventione. Nonetheless, the study of laws and regulations as well as the nineteenth century scholars’ opinions reveals that the change initiated in 1804 is much deeper: if the agreement is sufficient to establish and transfer real rights, these rights are established and transferred to the parties only. For example, in current French Law, the sale of a boat transfers its property regarding to the seller, but not towards to third parties and, in particular, not regarding to the seller’s unsecured creditors or to the State. As long as the registration of the deed of sale is not completed, these third parties may ignore the transfer of property resulting from the sale. A lot of questions can be raised: has the sale really settled a transfer of property? Is a property regarding only to the seller still really a property? Similarly, in current French Law, an agreement may establish a mortgage, but this right is not enforceable against third parties as long as this act has not been registered. Thus, the unsecured creditors of the settlor may ignore the right of the mortgagee. But does it make sense to consider a mortgage without a preference right?This thesis describes how the legislator and nineteenth century scholars, in reducing the acquisitive modus into the acquisitive titulus and in distinguishing between inter partes effect and extra partes effect, have built a myth : the one of the agreements establishing and transferring real rights. Unlike formulas generally used by law and textbooks, in current French Law, real rights are established and transferred by agreement and delivery or registration
Pinto, Hania Vanessa, and Hania Vanessa Pinto. "Les biens immatériels saisis par le droit des sûretés réelles mobilières conventionnelles." Phd thesis, Université Paris-Est, 2011. http://tel.archives-ouvertes.fr/tel-00713275.
Full textBalat, Nicolas. "Essai sur le droit commun." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020012/document.
Full textThis work offers a comprehensive study on the “droit commun” (approximately translated into “general rules of law” or “ordinary law”), a fundamental concept at the core of the theory and daily practice of French law. Contrary to traditional approaches involving the impression of a changing and variable concept (civil law, general theory, Roman law, European law, principles?), “droit commun” is a technical concept referring, for a given institution, to the legal rules whose scope of application is indefinite. This study also reveals the two distinct applications of “droit commun”; “droit commun territorial” (“territorial general rules of law”) and “droit commun matériel” (“material general rules of law”). The first application, “droit commun territorial”, although lesser known, is technically and historically primal. Droit commun territorial is specifically mentioned for in article 1393 of the French civil code (regarding the matrimonial property regimes), and in a fundamental principle identified by the French Constitutional Council in 2011. The second application, “droit commun matériel”, is better known but needs an overview. In particular, the section of the French civil code which contains articles 2333 and following (on the “droit commun” of pledging of corporeal movables), refers to it. These two applications of “droit commun” are the expressions of a summa divisio. Although both applications have similarities, they remain fundamentally different. The respective applications of “droit commun” do not refer to the same rules of law: rules where territorial scope of application is unlimited versus rules where material and personal scope of application is unlimited
Bennephtali, Johanna. "Le nantissement de créance et les procédures collectives." Thesis, Paris Est, 2019. http://www.theses.fr/2019PESC0004/document.
Full textPledges over receivables have long been neglected by actors of the economy because of its inadequate legal system. But since the order from March 23rd, 2006 and the new provisions regarding security it implemented, the consistent, appropriate and flexible system has become more attractive for creditors.In practice however, the current provisions are too imprecise to reassure the involved parties who remain uncertain and insecure in their litigations.This uncertainty increases when creditors need to ensure that their security is efficient, i.e. when launching collective insolvency proceedings against the grantor.Indeed, the debtor has become more protected with each alteration of bankruptcy proceedings law which seeks to keep companies active. To that end, creditors’ rights have been greatly restricted: they are subjected to collective discipline and cannot continue paying their receivables.In this context, it appears necessary to study pledges over receivables to ascertain if said security can work for the secured creditor in case of collective insolvency proceedings against the grantor.We shall demonstrate that the efficiency of pledges over receivables depends directly on the rights it gives to the creditor, such as notifying the security and granting exclusive right of payment of the secured receivable. However, this guarantee can only become one of the most protecting securities if these rights are also granted in case of collective proceedings.By examining how pledges over receivables and the right they grant work, we can highlight the possibility for the secured creditor to exercise and keep their exclusive right of payment, even after the opening judgment; thus confirming the efficiency of the pledge over receivables
Séjean-Chazal, Claire. "La réalisation de la sûreté." Electronic Thesis or Diss., Paris 2, 2017. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247191710.
Full textUp until the order of 23 March 2006 on security rights, a creditor aiming at realizing his surety had to resort to the procedures of execution available to any creditor in order to implement his general right of pledge. The effects of the real surety would manifest only after the execution sale of the encumbered property, through the preferential satisfaction of the creditor during the proceedings of the price distribution. The 2006 reform of the law of security rights has altered this situation by generalizing the judicial attribution and by legalizing the conventional attribution of the encumbered property. These modes of realization are deemed to be simpler and faster than the traditional enforcement proceedings, but also more efficient to shut out the other competing secured creditors. From now on, the creditor benefiting from a real surety is favoured as soon as he exercises his rights against the defaulting debtor. In order to exercise his power of constraint, he may rely on all the enforcement proceedings that are specific to the real surety. The legislator has carefully provided guidelines to use these attribution techniques to protect the interests of the debtor. However, the legal framework applicable to these modes of realization deserves to be adjusted in order to improve their legal certainty, their efficiency, and therefore their attractiveness. The effects of these modes of realization against the competing secured creditors of the recipient are not completely clear. Attribution is often presented as a technique that ensures the plaintiff an exclusive satisfaction, while the competing creditors’ claims are redirected on a hypothetical consigned remainder. Although the other creditors cannot take part in the procedure, nothing justifies that their rights be undermined. It is therefore important to determine how to reconcile the optional attribution of the encumbered property and the rights of the competing secured creditors
Séjean-Chazal, Claire. "La réalisation de la sûreté." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020069.
Full textUp until the order of 23 March 2006 on security rights, a creditor aiming at realizing his surety had to resort to the procedures of execution available to any creditor in order to implement his general right of pledge. The effects of the real surety would manifest only after the execution sale of the encumbered property, through the preferential satisfaction of the creditor during the proceedings of the price distribution. The 2006 reform of the law of security rights has altered this situation by generalizing the judicial attribution and by legalizing the conventional attribution of the encumbered property. These modes of realization are deemed to be simpler and faster than the traditional enforcement proceedings, but also more efficient to shut out the other competing secured creditors. From now on, the creditor benefiting from a real surety is favoured as soon as he exercises his rights against the defaulting debtor. In order to exercise his power of constraint, he may rely on all the enforcement proceedings that are specific to the real surety. The legislator has carefully provided guidelines to use these attribution techniques to protect the interests of the debtor. However, the legal framework applicable to these modes of realization deserves to be adjusted in order to improve their legal certainty, their efficiency, and therefore their attractiveness. The effects of these modes of realization against the competing secured creditors of the recipient are not completely clear. Attribution is often presented as a technique that ensures the plaintiff an exclusive satisfaction, while the competing creditors’ claims are redirected on a hypothetical consigned remainder. Although the other creditors cannot take part in the procedure, nothing justifies that their rights be undermined. It is therefore important to determine how to reconcile the optional attribution of the encumbered property and the rights of the competing secured creditors
Buisine, Olivier. "Le sort des garanties réelles en cas de plan de cession." Thesis, Lyon 3, 2014. http://www.theses.fr/2014LYO30063.
Full textThe sale of a business is one of the most important insolvency solutions.However it’s a hard task to determinate creditor’s rights under these circumstances.Insolvency law has deeply changed consequently to main reforms (Act of July 26, 2005 called the “Safeguard Act”, Order of December 18, 2008 and to a lesser extent Order of March 12, 2014).At the same time, guarantee law has been modified by lots of reforms too (Order of March 23, 2006, Act of February 19, 2007, Act of August 4, 2008, Order of January 30, 2009).These reforms were fragmented. Furthermore they have been built without guideline. As a result, the articulation between insolvency law and guarantee law is very difficult.The theoretical and practical questions generate a real legal insecurity.The goal of this research work is to make insolvency practitioners propositions based on, amongst others, doctrine’s comments and criticism. The objective of these propositions is to establish a better balance between the pluralities of interests involved
Pinto, Hania Vanessa. "Les biens immatériels saisis par le droit des sûretés réelles mobilières conventionnelles." Thesis, Paris Est, 2011. http://www.theses.fr/2011PEST0066/document.
Full textImmaterial assets are traditionally described either as intangible assets or as intangible or intellectual property, or else as operating assets, but most of those terms are not satisfactory. This class of assets actually suffers from a lack of definition. However, some people state that they represent a form of economic wealth, a fantastic source of credit for the debtors, and a guarantee of safety for the creditors. And yet, French legislation seems to have ignored immaterial assets.This is first and foremost demonstrated by property law. Indeed, according to article 516 of the Code civil, which states that « property is either movable or immovable », one has to admit that immaterial assets cannot validly be linked to movable or immovable property. Immaterial assets are opposed to material assets (property of nature, commodities, intellectual property of the public domain or without protection under intellectual property law). They refer to property that has an object and a corpus. Two types of immaterial assets have been identified: financial immaterial assets, bringing together currencies, units and shares in a company, financial instruments, liabilities and industrial immaterial assets, bringing together business and intellectual property.This is also demonstrated by conventional real-property surety law. The surety law reform project which was awarded to the Grimaldi Commission was the source of significant hope. It had only been rarely amended since the inception of the Code civil and the structure was weakening and needed updating. This weakening had three main grounds : readability first, in particular since conventional real-property surety law on immaterial assets had developed outside of the Code civil, efficiency and capability of the contemplated systems regarding the preservation of the interests of the debtor and the creditor. Practice and doctrine had been denouncing such complexity for long and were calling for amendments. Unfortunately, order n°2006-346 of March 23rd 2006 reforming surety law didn't restore confidence. By creating the lien as the conventional real-property surety on immaterial movable assets without creating a consistent system, it has only emphasized the obvious concerns and critics.However, we are convinced that French law has the means that are essential to save this subject. Indeed, the new system of pledge, as amended by order n° 2006-346 of March 23rd 2006, now has a system that is suitable for industrial immaterial assets. As for the “fiducie-sûreté”, established by Act n° 2007-211 of February 19th 2007, it has revealed that, through the experiences observed abroad, it is fully efficient when it deals with financial immaterial assets
Benadiba, Aurore. "Les sûretés mobilières sur les biens incorporels : Propositions pour une rénovation du système des sûretés mobilières sur les biens incorporels en France et au Québec." Paris 1, 2012. https://www-numeriquepremium-com.passerelle.univ-rennes1.fr/content/books/9782919211630.
Full textEmerich, Yaëll. "La propriété des créances : approche comparative." Thèse, Lyon 3, 2004. http://hdl.handle.net/1866/2457.
Full textThe question as to whether ownership can bear on claims is a controversial one in Romano Germanic legal systems. Yet the on-going trend towards the dematerialisation of wealth invites legal experts to ally ownership and claims much in the same way in which, in ordinary parlance, people are said to own personal rights. Both history and economics would seem to point to a common recognition of the property nature of claims. Yet acknowledging the possibility that ownership bear on claims is no longer enough. The consequences of viewing the object of ownership as extending beyond material things must be recognized more generally. This is what the recent Civil Code of Québec appears to have done. Just as the material conception of ownership rests upon a technical infrastructure of the law of property, so too does the extension of ownership to claims require the elaboration of a technical regime. Traditionally obscured by a theory of titularity of rights, ownership as a means for explaining title to claims has the same juridical nature as ownership of things. Simply stated, ownership adapts to the object to which it attaches. Just as ownership can accommodate both movable and immovable property, so too can it be adapted to accommodate the peculiarities of claims as the object upon which it bears.
"Thèse présentée à la Faculté des études supérieures de l'Université de Montréal en vue de l'obtention du grade de Docteur en Droit (L.L.D.) et à l'Université Jean Moulin Lyon 3"
Jacob, Timothée. "Cession de créance et opposabilité." Thesis, Strasbourg, 2015. http://www.theses.fr/2015STRAA035/document.
Full textAs a technique connecting a legal element to its environment, "opposabilité" is a crucial caracter to assignment of receivables, as it will determine the efficiency of the operation in a context of entanglement of legal relations. The accomplishment of an "opposabilité" formality, distinct from the transfer of the property right between the parties and from possession, will enable the transfert to integrate the legal system by paralysing certains events, as for example competing assignments or the bankruptcy of the assignor. The identified lightening of the "opposabilité" formalism requires an adequate protection of the rights of third parties. The assignment will not be hermetic to its environment, as the radiation of certain legal elements will have an impact ont the contract concluded by the parties. Consolidated by the "opposabilité" technique, the assignment will remain vulnerable to the influence of the object of the transfert and to external real and personal rights
Lemaitre, Freddy. "La monnaie comme objet de sûretés." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020044.
Full textAs the law stands, security rights in money are likely to be subject to different legal treatment, depending on whether money is regarded as a tangible asset or as an intangible asset, and depending on whether sums of money as a guarantee are assimilated with the secured creditor’s property or not. Taking this observation as its starting point, the present essay suggests adopting a unified approach of legal nature of money, that is likely to justify that money should be subject to a simplified security regime. Without ignoring that it is bound to be dual, depending on whether sums of money as a guarantee are separated from the secured creditor’s property or not, this security regime would be called upon to replace the present fungible assets, bank account and receivables pledge agreements, and also security trust on receivables and money, with a single money pledge agreement.The rules of the lodging of this money pledge agreement will be designed to eliminate the never-ending debates as to whether the “cash collateral” vests ownership of the encumbered money in the secured creditor, or not. Indeed, the assimilation of the encumbered sums of money with the secured creditor’s property will involve a sui generis division of the ownership rights that will be like an irregular usufruct by way of collateral, and that will grant the creditor neither mere preferential rights, nor ownership rights, nor any right similar to the right of a security trustee, but the right to dispose of money provisionally. This right of disposal will encumber temporarily the ownership rights that will remain in the hands of the grantor of the security.The rules of its lodging being therefore clarified, the rights granted by the money pledge agreement will be enforced more quickly and more effectively since the divided ownership of money will be reconstructed in the hands of the grantor of the security or in the hands of the secured creditor, depending on whether the secured debt will be paid or not, and without there being a need to wonder if the rights granted by the pledge have to be enforced either through judicial or contractual award of the right of ownership, or through legal, judicial or contractual compensation
Jullian, Nadège. "La cession de patrimoine." Thesis, Rennes 1, 2016. http://www.theses.fr/2016REN1G019.
Full textThe transfer of estate is a recent institution in French substantive law. It was established under Law N° 2010-658 of 15 June 2010 (The Limited Liability Sole Trader [EIRL] Act) and provides for inter-vivos transfers of estates. However, the concept comes into direct conflict with AUBRY and RAU’s famous late 19th century subjective theory of estates, according to which an estate issues from a person. Because an estate cannot be dissociated from the person who holds it, the link between the person and his or her estate cannot be severed, even by way of a transfer. The question thus arises as to how the very notion of transfer of estate could find its way into French law. The introduction of the transfer of estate into French law is actually an invitation to review the theory of estates, in order to understand how something that so far could not be achieved in a person’s lifetime has now become possible. It thus appears that under some conditions a person may willingly dispose of his or her whole estate without any prior liquidation. As the transfer is essentially a universal transaction, it may take several forms such as that of a sale or a gift of property (Part I : Establishing the transfer of estate in French law).The establishment of a legal framework for such a new concept was a delicate matter. Parliament was initially overtaken by the disruption it had caused and what were for all intent and purposes unforeseen (if not inforeseeable) implications. It did organise the transfer of estate as applied to Limited Liability Sole Traders [EIRL] but the resulting framework was both defective and incomplete. If one is to correct and complete the existing framework, one should not devise legal rules ex nihilo but rather draw from existing rules, particularly those that already govern some forms of universal transfers of estate, such as the law of mergers and acquisitions and the law of successions. Still, these rules must be adapted to the specificities of the transfer of estate, namely inter-vivos gifts and, now that French law recognises the plurality of estates, the possibility for the transferee to hold the estate separately from his own assets (Part II : Setting the rules for the transfer of estate)
Durez, Clément. "La règle du jeu et le droit : contribution à l'élaboration d'une théorie juridique du jeu organisé." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30034.
Full textGaming regulations appear to have become obsolete as articles 1965 to 1967 of the Civil Code which has not been modified since1804 demonstrate. However, the successive arrival of television, computer software and internet has metamorphosed recreational activities, including gaming. Lawyers, long disinterested by gaming issues, are now surprised to see these reemerging throughout their profession. At a time when sports games still escape the “obsessive rectification” the rights of civil responsibility grant, where principles of free competition have removed the state monopoly concerning the games of chance and where televised games redefine the characteristics of work contracts, it seems to be appropriate to elaborate a global discussion on the judicial aspect of gaming. Within a framework of a general approach gaming will be studied but from the point of view of its rules in order to lay aside unregulated amusement activities to favor regulated gaming. The latter, whenever it takes place under an agreement between an organizer presenting an offer to participate and one or several players who accept, raises similar juridical questions for all types of gaming activities. Is the organizer responsible for the equipment he provides? Should he regulate access to his game? Does he have an obligation to offer a prize to the winner of a game? What are the consequences concerning the various violations of the game? Is the licitly of the established target a valid condition of the game? By seeking to elaborate on these questions, this dissertation aims to pave the way for a more appropriate judicial framework for gaming
Dubois, Thierry. "La modification du rang des droits de gage immobiliers ensuite de convention de postposition /." Zürich [u.a.] : Schulthess, 2003. http://www.gbv.de/dms/spk/sbb/recht/toc/538961236.pdf.
Full textLehne, Jens. "Constitutional compliance : a game-theoretic analysis /." Berne : Staempfli [u.a.], 2004. http://www.gbv.de/dms/spk/sbb/recht/toc/522420281.pdf.
Full textNahas, Imad. "Le jeu et le pari en droit." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020017/document.
Full textGames of chance were known and practiced by man since the earliest civilizations. But all the way since the greco-roman antiquity, these games have attracted the ire of moralists, clergymen and legislators, each for their own motives. Strict laws were enacted by the Antiquity legislators, laws that were later upheld by canonists and jurists of the Old law, as well as the civil Code editors, in order to eliminate, or at least confine this recreational practice. But the human desire to enjoy these games of chance was stronger than these laws, and the practice survived. Over the course of the 20th century, and while certain States around the world chose absolute prohibition, others, like France, opted for a controlled authorization under the auspices of the State. Thus was created the prohibition-monopoly-exception triptych, under which gambling grew considerably. And when the technological development allowed games of chance to be provided through the internet, the gambling industry reached in France and around the world, limits never known before in the course of the human history. But this exceptional development has brought new challenges along, mainly in the finance and security areas, but also at the European legal level where the French monopoly model was criticized. To take up these challenges, new laws were enacted in recent years. But all fell short of the challenges scale. The task was initiated, but most of the work remains to be done