Private law and collective procedures.

Summary The law of collective procedures is a "conflicting law". There are often opposing conceptions, which reflect the difficulties linked to the overlap between the rules of private law and those of the law of collective procedures. The result of this confrontation is either the eviction of common law or its retention. The eviction of the ordinary law by the law of collective procedures, as a special law, can benefit the recovery of the company in difficulty or its creditors. In the first case, the law of insolvency proceedings, as a special law, disrupts the forecasts made by the parties and undermines the principle of autonomy of will, particularly in the case of the continuation or forced assignment of contracts. In the second case, the eviction of the ordinary law by the law of collective procedures, as a special law, may also prove to be favourable to the creditors of the company in difficulty. This displacement allows them to act against the guarantors, even if this is done at the cost of infringing the accessory nature of the guarantee, or even to engage the liability of the directors on the basis of actions specific to the law of companies in difficulty, which displace those of the ordinary law. The law of collective procedures as a special law thus crowds out ordinary law. On the other hand, as ordinary law, the law of collective proceedings may itself be ousted by special law: this ousting may be partial or total. Partial ousting implies the exclusion of certain provisions of insolvency law, in particular because they are unsuited to the specific nature of bank and insurance company insolvencies, and because of the need to ensure the security of financial markets and payment and settlement systems. The eviction of insolvency law, as a general law, can also be total. This is the case of the special and social law of overindebtedness, which completely displaces the law of collective proceedings.