Glossary
Appropriation clause (pacte commissoire)
The pacte commissoire is the clause that makes the creditor the owner of the asset given as security if the secured debt is not paid.
Definition
The pacte commissoire allows an unpaid creditor to become the owner of the encumbered asset without going through a forced sale. The French Civil Code, as amended by the security interests reform of 15 September 2021, permits it for most security interests in rem (sûretés réelles). Article 2348 permits it for a pledge of movable assets (gage), at creation or later. Article 2452 permits it for a mortgage, except over the property that is the debtor’s main residence. An expert appointed by agreement or by the court sets the value of the asset on the date of transfer, unless the asset has an official quotation on a trading platform. Any clause to the contrary is deemed unwritten. If this value exceeds the debt, the creditor pays the difference to the grantor, or deposits it when other pledgees exist. The securities account pledge refers to these rules. The French security trust (fiducie-sûreté) gives the secured creditor free disposal of the asset under a similar mechanism. A pledge over a business (nantissement de fonds de commerce) allows neither court-ordered transfer nor a pacte commissoire and is enforced by a sale. Article L. 622-7 of the French Commercial Code prohibits entering into or enforcing a pacte commissoire after the opening of safeguard or judicial reorganisation proceedings. In judicial liquidation, the clause is not performed. The lender enforces it before any insolvency proceedings, during the amicable phase, to take control of the shares of the borrowing company or its subsidiaries.
Worked example
A debt fund lends €75m to the holding company of a group of clinics, secured by a pledge over the subsidiary’s securities account with a pacte commissoire. After two missed payments, and before any insolvency proceedings, the fund gives notice that it is enforcing the clause. The expert values the shares at €90m. The fund becomes their owner and pays €15m to the holding company, since the debt outstanding amounts to €75m.
Points to check
- Check how the expert is appointed and the valuation method for the shares set in the contract.
- Negotiate a period between notice of default and enforcement of the clause so that you can open a conciliation.
- Check that the difference between the value of the asset and the debt goes back to the grantor.
- Assess the effect of a change of control on the key contracts of the subsidiary whose shares are pledged.
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