By its decision of November 21, 2018, the Commercial Chamber of the Court of Cassation provides many clarifications to assess the commitment of the surety physical person.
In the present case, a natural person by a deed of 3 April 2009 had guaranteed, up to a certain amount, all the liabilities of a company towards a bank. Subsequently, by a new act of July 20, 2011, the same natural person again made bail of a loan granted by the bank to the company. The latter having been placed in bankruptcy, the bank assigned the bond in execution of its engagements.
The Court of Appeal of Poitiers, in a judgment rendered on January 26, 2016, cancels the surety subscribed on April 3, 2009, but not that of July 20, 2011. The surety therefore decides to file an appeal in cassation, consisting of four pleas. The first plea, divided into three branches, is based on former Article L. 341-2 of the Consumer Code (new Article L. 331-1 ) to obtain the annulment of the act signed on July 20, 2011. : the signature would have been affixed upstream and not downstream of the handwritten note and the principal debtor of the secured debt would not be properly identified, thus preventing the surety from knowing the meaning and scope of his undertaking.
The second plea alleges the existence of a disproportion of the security, since it must be assessed in the light of all the commitments entered into by the surety under the former Article L. 341-4 of the Consumer Code (new art. L. 332-1 ). The third plea contemplates non-compliance with the formalities provided for by Article L. 313-22 of the Monetary and Financial Code, which imposes an annual information obligation on the creditor. Lastly, the fourth plea uses Article L. 650-1 of the Commercial Code: excessive loans granted by the bank to its debtor should have made it possible to retain its responsibility, even in the absence of fraud.
But only with regard to the obligation of annual information. The judges of the fund had indeed contented themselves with mentioning the existence of newsletters without justifying that they contained the informative precisions imposed by Article L. 313-22 of the Monetary and Financial Code. The commercial chamber therefore rejects the grounds founded the irregularities of form of the commitment of guarantee, its disproportion and the responsibility for abusive support.
Regarding the handwritten mention imposed by former Article L. 341-2 of the Consumer Code, the Court of Cassation considers that this vice can only be raised by the surety and not ex officio by the judges of the merits . However, the surety had not argued before the Court of Appeal that the signature preceded the handwritten mention.
As regards the disproportion of the security , the Court of Cassation states that the act of 3 April 2009 having been annulled, the latter could not be taken into account in assessing the disproportion : “if the disproportion must be assessed taking into consideration the overall indebtedness of the guarantor, including that resulting from other guaranty undertakings, it is not possible to take into account a previous security which the judge declares void, and which is thus annihilated retroactively “(it should be added that the Court of cassation requires the judges to take into consideration the overall indebtedness of the surety of which the creditor had or could have knowledge, including the indebtedness resulting from other commitments Sam Wellers previous surety V.: Com 22 May 2013 , nos. 11-24.812).
Lastly, as regards the bank’s liability , the Court of Cassation recalls that “when a procedure of safeguard, judicial reorganization or liquidation is open, the creditors can not be held responsible for damages suffered as a result of the competitions. in the event of fraud, a serious interference with the debtor’s management or disproportionate guarantees , and if the assistance provided is in itself wrong “.