THE COURT

(…)

Given that, according to the Judgement under attack, that (1) during 1991 and 1992 Ediscan, a corporation, benefited from a loan from the Caisse du Crédit Mutuel du Nord (“Crédit Mutuel”); (2) by contracts under hand dates 30 December 1992 Messieurs X and Y and a company X became joint and several sureties for the benefit of Crédit Mutuel; (3) On 1 June 1994 Prismo, a corporation, acquired all of the shares of Ediscan and declared the latter to be dissolved before term as from 1 June 1994; (4) by a judgement dated 16 September 1994 Prismo was put into administration; and (5) on 27 September 1995 Crédit Mutuel brought action against Ediscan, Messieurs X and Y and company X, as joint and several sureties, for the payment of the unpaid amount of the loan and the overdraft standing in its books;

Concerning the first ground, in its three limbs:

Given that Crédit Mutuel criticises the judgement for having refused its claim for payment made against the principal debtor, Ediscan and the three sureties, Messieurs X and Y and Company X whereas, according to the ground:

1. only an exact and complete entry in the Commercial and Company Register is of a nature to allow the person who is under the obligation to make such entry to rely, as against third parties, on the facts and documents which should be entered; the Court of Appeal found that Ediscan had been dissolved without being put into liquidation as a result of all the shares being held by Prismo, but also found that only a mention of the early dissolution had been entered into the Commercial and Company Register, without reference to the fact that all the shares were held by one person or to the absence of liquidation, so that the transfer of the assets without liquidation and the resulting disappearance of the dissolved company were not binding on third parties; by holding that they were nevertheless binding on Crédit Mutuel the Court of Appeal failed to draw the legal consequences of its findings and breached Articles 1844-5 of the Civil Code and 66 of the Decree of 30 May 1984;

2. in any case, the disappearance of a corporate body which has been dissolved without liquidation as a consequence of the falling of all the shares into the hands of one person is binding on third parties only after the company has been struck off the Commercial and Company Register; the Court of Appeal noted the fact that Ediscan had not been struck off, but held nevertheless that the disappearance of that company was binding on third parties, and so breached Articles 5 of the Law of 24 July 1966, 1844-5 of the Civil Code, and 66 of the Decree of 30 May 1984

3. the action for lifting the time-bar made by Crédit Mutuel in respect of the insolvency proceedings relating to Prismo is incapable of showing that the Bank recognises that it has no claim against Ediscan and its sureties, such a claim, on the contrary, being capable of helping to preserve the rights of the Bank in case its claims against Ediscan and its sureties if the claims against Ediscan and the sureties did not succeed;

But given that (1) the judgement found, for good and appropriate reasons, that (a) the dissolution without liquidation of Ediscan, pursuant to Article 1844-5 of the Civil Code, was the subject of a deed of dissolution stamped by the tax office at Arras-Ouest at the registry of the Commercial Court of Arras; and (b) the decision to dissolve before term was published in the Croix du Nord newspaper on1 July 1994 and was the subject of an amending filing at the Commercial Registry on 8 July 1994 under the form “dissolution of the company before term as from 1 June 1994”;

(2) thus, after having found that (a) the formalities linked to the dissolution of Ediscan had been carried out, the failure to strike it off being of little importance; and (b) Crédit Mutuel had not lodged any objection to the dissolution, the Court of Appeal deduced correctly (apart from the unnecessary reason criticised in the second limb) that the dissolution of Ediscan was binding on Crédit Mutuel; and (3) the ground is unfounded in both limbs;

But on the second ground, considered as to its first limb:

In view of Articles 1844-5 and 2015 of the Civil Code;

Given that in the case of dissolution without liquidation of a company giving rise to the transfer of the whole of its assets and liabilities to a sole shareholder, the liability of a surety continues in respect of engagements arising prior to the dissolution of the company;

Given that when it held that the guarantee was extinguished on the date of the “merger” whereas the debt guaranteed was a loan whose repayment constituted a term liability undertaken by Ediscan prior to its dissolution (it matters little that it was not due and payable on that date), the Courtof Appeal breached the above-cited provisions;

FOR THESE REASONS (…)

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