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Les contrats de location financière dans les procédures collectives d'apurement du passif en droits français et allemand comparés

Abstract : Businesses are increasingly using financial lease contracts to finance their capital goods. For the lessee, this form of financing offers the advantage that it does not require an injection of stockholders' equity. This mechanism also allows the finance company (the lessor) to retain ownership of the assets, a strong form of security in the event of the insolvency of the lessee. This becomes all the more relevant when one considers that finance companies are being confronted with cases of lessee insolvency more and more. However, this means that the interests of the lessor stand in opposition to the collective interest of creditors because the retention of a business's means of production is vital to keep the business in operation, which is necessary if the business is to be rescued or indeed wound up. This thesis analyses the reconciliation of the interests at stake based on a comparison between the situation in France and Germany. This analysis is done through a study of the three roles of the lessor in the insolvency proceedings of the lessee, namely as a co-contracting party, a creditor and an owner. First, it points out the necessity of keeping the financial lease in force after the opening of collective insolvency proceedings despite breaches of contract on the part of the lessee. Then it goes on to consider the payment terms of the lessor. And finally, it sets out the conditions for the return of the asset to the lessor and explains the terms of the exercise of the option to purchase the asset. This study shows how the French legal system is more complex than its German counterpart in essentially achieving the same practical results.
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Submitted on : Thursday, March 29, 2018 - 12:00:58 PM
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Laëtitia Franck. Les contrats de location financière dans les procédures collectives d'apurement du passif en droits français et allemand comparés. Droit. Université Nancy 2, 2011. Français. ⟨NNT : 2011NAN20010⟩. ⟨tel-01749096⟩



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