Note on Cass. com., 21 October 2026, no. 24-22.201
A liquidator acting in the collective interest of creditors is a third party.
A third party to the contract, whose arbitration clause is « manifestly inapplicable » to the liquidator.
A third party to the award, which has no res judicata effect against the liquidator.
A third party to the settlement, which does not bar the liquidator’s action.
The liquidator is, in other words, a triple third party.
So the Commercial Chamber has just held, in a decision of 21 October 2026 that is slated for publication in the Bulletin1.
A decision accompanied by an interesting reservation, which is not unlike Clamageran and France Comptabilité.
The facts
A company operates a supermarket under the Intermarché express banner, in premises leased from the group’s real-estate company. On 7 November 2017 it entered into a partnership agreement with the head of the network; the agreement contains an arbitration clause.
The operator brings arbitration proceedings seeking annulment of the agreement for fraud (dol). It also claims damages for operating losses.
A 2019 award dismisses those claims but orders the head of the network to pay EUR 10,000 to the shareholders of the parent company « for having communicated erroneous forecasts ».
After the award, in January 2020, the parties settle.
The matter seems closed.
It is nothing of the sort. Some time later, the operator is placed in judicial reorganisation and then in judicial liquidation.
The liquidator sues the head of the network, the purchasing cooperative and the real-estate company before the commercial court, on the basis of Article 1240 of the Civil Code, that is, in tort.
The liquidator complains that they « failed in their duties of advice and information » as to the unsuitability of the premises and that they supplied « an erroneous feasibility study and forecast ».
The liquidator seeks damages equal to the total amount of the claims admitted to the insolvency estate.
The action looked strangely like the one the arbitral tribunal had decided. Yet, although the facts were the same, the claimant was different, and so was the basis of the claim.
Sued in tort, the defendant companies plead the arbitration clause in the contract, but also the authority of the award and that of the settlement.
In vain: the commercial court, then the Paris Court of Appeal2, turn them away, and the Commercial Chamber of the Cour de cassation dismisses the appeal.
A third party to the contract: the arbitration clause neutralised
Since Boot Shop, it has been known that a third party may rely on a contractual breach in support of a tort claim3. The solution was confirmed in Bois Rouge in 2020. It is a solution fraught with significant threats for contractual debtors, who find themselves facing creditors whose very existence they did not know of, and against whom they cannot invoke any of the contract’s clauses.
A breath of fresh air has nonetheless been blowing since 2024, thanks to the Commercial Chamber. In Clamageran and France Comptabilité, it moved to stem the deleterious effects of the Boot Shop case law, restoring a hint of coherence. A third party who relies on the contract suffers in return the « conditions and limits of liability that apply as between the contracting parties »: limitation-of-liability clauses yesterday, forfeiture, limitation-period and prior-conciliation clauses today4.
It remains to be seen what the expression « conditions and limits of liability » covers, and more precisely whether it encompasses the arbitration clause.
If it did, a third party relying on a contractual non-performance would have to bring the claim before the arbitral tribunal. Some may be troubled by this. That was the view of Ms Henry, the advocate general in the present case5. For our part, we see no fatal obstacle. The debtor’s expectations should not be defeated by allowing it to be sued before a forum it did not choose. Between the third party who conveniently relies on the contract and the debtor, we think the latter should be preferred.
In the case at hand, the advocate general’s opinion put forward three reasons for not subjecting the liquidator’s action to the arbitration clause:
- The autonomy of the arbitration clause;
- The scope of the Clamageran and France Comptabilité case law, towards which the advocate general’s opinion shows a definite hostility;
- The liquidator’s monopoly (Commercial Code, Art. L. 622-20).
The Commercial Chamber accepts none of these three reasons, showing real freedom of thought, having likewise declined to follow the advocate general of the day in Clamageran.
The Court refuses to say that the arbitration clause is by nature unenforceable against a third party who sues on the basis of the contract.
It likewise refuses to say that the arbitration clause is, as a matter of principle, unenforceable against the liquidator.
The decision, more pragmatic, turns on a single question: is the liquidator a third party suing on the basis of a contractual breach?
Put differently, the Commercial Chamber does not address the consequences of its Clamageran / France Comptabilité case law. It says nothing on whether the arbitration clause falls within the category of « conditions and limits of liability ».
It rules on one point only: is the liquidator’s action a Boot Shop-type action? Is this, in other words, a third party who bases a tort claim on a contractual breach?
The question calls for two answers.
First, is the liquidator a third party to the contract? As the advocate general’s opinion rightly points out, the liquidator wears two hats: at times representing the debtor, at times defending the collective interest of creditors. In the first case, the liquidator is not really a third party: he steps into the debtor’s shoes6. When, on the other hand, the liquidator acts in the collective interest of creditors, in particular where the action is brought for wrongful financial support or to annul acts under the hardening period, the liquidator is indeed a third party to the contract7.
In the case at hand, the action, which sought « to obtain the elimination or reduction of the liabilities », was brought in the collective interest of creditors.
Our liquidator was therefore indeed a third party.
Second, does the liquidator base the action on a contractual breach?
Here lies the limit of the exercise. It is not enough to be a third party to a contract and to allege a fault committed on its occasion in order to have the contract set up against oneself: one must further allege a breach of that contract. That is, in substance, the lesson of this decision.
The Commercial Chamber here approves the trial judges for having held that, since the action « sought to penalise faults that had led to the failure of the debtor company and to obtain the elimination or reduction of the liabilities », the arbitration clause was manifestly inapplicable within the meaning of Article 1448 of the Code of Civil Procedure8.
In concrete terms: since the alleged faults had led to the failure of the debtor company, they caused a collective loss to all the creditors, represented by the liquidator. The solution echoes that of a decision of 10 June 2026, which held that « the loss resulting from a fault that contributed to the cessation of payments » is by nature a collective loss9.
The reservation: « provided that no breach […] of the contractual obligations arising from the partnership agreement was alleged »
Still, this fault, even if it encroached upon the collective interest of creditors, lies not far from the contractual sphere.
The head of the network was accused of a breach of its « duties of advice and information as to the unsuitability of the leased premises ».
One would be tempted to see a contractual breach in that.
To fail in one’s duties of advice and information, is that not to breach the contract?
If the answer were yes, it seems to us that the Clamageran / France Comptabilité case law would apply. A third party, even a liquidator, who claims to have suffered loss from a breach of the contract would have the contents of that contract set up against him, including the arbitration clause.
Conversely, if one is dealing with pre-contractual faults, with breaches of statutory duties of prior advice and information10, the third party’s action does not follow in the wake of Boot Shop, and the debate on whether the arbitration clause can be set up as a « condition and limit of liability » falls away.
By implication, one understands that the Commercial Chamber reserves the possibility, in another case, of holding that the arbitration clause is enforceable against a third party who sues on the basis of a contractual breach.
It could do so by considering that all the clauses that shape the liability action are « conditions and limits of liability », enforceable as such against third parties.
A third party to the award, a third party to the settlement
A word, finally, on the rest of the decision.
The Court first holds that the award has res judicata effect only between the parties.
It adds that the settlement bars only an action « between the parties »11.
Since the liquidator, acting in the collective interest of creditors, is not a party but a third party, neither can be set up against the liquidator as a plea of inadmissibility. The Court does not even have to examine the identity of subject matter, which the appeal argued with some justification: the ground is « ineffective », presumably for want of identity of parties.
To be continued!
Takeaways
- A liquidator who acts in the name and in the collective interest of creditors is a third party to the contract entered into by the debtor: the arbitration clause it contains is manifestly inapplicable to the liquidator (Art. 1448 CPC).
- The solution is subject to the condition that no breach of contractual obligations is alleged: here the liquidator pursued faults of advice and information (an erroneous forecast), which the appeal characterised as pre-contractual, on the basis of Article 1240 of the Civil Code.
- Whether the Clamageran case law extends to the arbitration clause is not decided; it is reserved, and would, where appropriate, fall within the arbitrator’s priority jurisdiction.
- As a third party to the arbitral proceedings and to the settlement, the liquidator is affected neither by the res judicata effect of the award nor by the extinguishing effect of the settlement.
Notes
- Cass. com., 21 October 2026, no. 24-22.201, FS-B, courdecassation.fr; report of Ms Gouarin, reporting judge (conseillère), and opinion of Ms Henry, advocate general, published on Judilibre; decision not yet available on Légifrance at the time of writing. ↩
- CA Paris, pôle 5, ch. 8, 5 November 2024, no. RG 24/06006, LibreJustice. ↩
- Cass. ass. plén., 6 October 2006, no. 05-13.255, Boot Shop, Légifrance; Cass. ass. plén., 13 January 2020, no. 17-19.963, Bois Rouge, Légifrance. ↩
- Cass. com., 3 July 2024, no. 21-14.947, Clamageran, Légifrance; Cass. com., 17 December 2025, no. 24-20.154, France Comptabilité, Légifrance. On the whole, see L. Thibierge, « De Boot Shop à Artemis, sur la responsabilité du contractant à l’égard des tiers », RJDA 2026, no. 7, p. 7; and our video special « Le contrat et les tiers » (The Contract and Third Parties), Attendu que…, 13 October 2026. On the extension of this case law to the arbitration clause, see R. Loir, D. 2026, p. 322; Cl. François, Gaz. Pal. 17 February 2026, no. 5, p. 19; D. Mouralis, RTD com. 2026, p. 51; H. Barbier, RTD civ. 2026, p. 101. ↩
- Opinion of Ms Henry, advocate general, no. 16, published on Judilibre: « The enforceability of an arbitration clause against a third party to the contract who, by definition, has not accepted it (a condition laid down by Article 2061 of the Civil Code) raises the question of the guarantee of that party’s right of access to a court ». ↩
- Cass. civ. 1re, 1 April 2015, no. 14-14.552, Bull., Légifrance (contract sued upon); Cass. com., 26 February 2020, no. 18-21.810, Légifrance (annulment of the franchise agreement for fraud). ↩
- Cass. com., 14 January 2004, no. 02-15.541, Bull., Légifrance (liquidator acting for wrongful financial support: clause « foreign to the dispute »); Cass. com., 17 November 2015, no. 14-16.012, Bull., Légifrance (nullity under the hardening period); for the jurisdiction clause, Cass. com., 9 June 2022, no. 20-23.509, Légifrance, Rev. sociétés 2022, p. 519, note L.-C. Henry. ↩
- Whose wording will be amended by Decree no. 2026-741 of 6 August 2026, with effect from 1 January 2027 and only for arbitration agreements concluded after that date. The current wording of the text therefore applies here. ↩
- Cass. com., 10 June 2026, no. 24-18.425 et seq., FS-B, Légifrance, § 11: « The loss resulting from a fault that contributed to the cessation of payments is therefore a collective loss, for which only the liquidator may seek compensation ». ↩
- First limb of the first ground of appeal, reproduced at § 10 of the decision. ↩
- Art. 1484, para. 1, Code of Civil Procedure; Art. 2052 Civil Code, in the wording resulting from Act no. 2016-1547 of 18 November 2016. ↩
Translations of quotations from French sources are ours.
