The "bond" is a personal guarantee by which a person named "the bond" is committed against a third called "the beneficiary of the bond" to pay the debt of the principal debtor known as "the person bonded" to If it fail in its commitments.
Confusion is often made, even at the Palace, which is to name the contract "a bond" instead of "security". That is a vocabulary borrowed from some practitioners in real estate it is best not to imitate the bond is the name of the contract, the surety is the person who stands surety.
Because of the serious consequences that may entail for the bond, the terms of his appointment, the Act of July 6, 1989. provided that its validity was contingent upon the completion of formalities as provided in Article 22-1 of the Act became Article 341-2 of the Consumer Code. This formalism is a formalism of protection. It is intended to ensure that the signature, the deposit was found fully informed of the nature and extent of its obligations, it only applies to guarantees entered into a private document, and not to past commitments before a notary. (3rd Civ. BICC July 9, 2008 No. 693 of December 15, 2008). See note MY Rouquet cited in the Bibliography below c. Is zero the bond, issued by private deed by an individual to a creditor professional, that does not required by the handwritten text (Commercial, April 28, 2009, appeal: BICC No. 08-11616 709 of 15 October 2009 and 1st Civil Division June 25, 2009, appeal No. 07-21506, BICC No. 713 of December 15, 2009 and Legifrance). See also the note of Mad. Avena-Robardet. referenced in the bibliography below;
On the other hand, the penalty for failure to comply with the formalities laid down in article L. 313-21 of the Monetary and Financial applies only in relations between the bank and the individual entrepreneur, the guarantor can not rely on them (Commercial, June 3, 2009, appeal No. 08-13613, BICC 712 of 1 December 2009 and Legifrance ). and (Commercial, June 16, 2008, appeal No. 08-14532, BICC No. 713 of December 15, 2009 and Leguifrance). See also the two notes of Mrs. Carolle-Brisson referenced in the Bibliography below.
The guarantor undertakes with the principal debtor. She can plead all the exceptions inherent in the debt, such as payment, prescription or compensation. The opening of a liquidation procedure interrupt proceedings before the Court of Cassation in respect of the person who is the object, it has, however, no effect in respect of guarantors of the latter. (3rd Civ. April 29, 2009, appeal: 06-18477 BICC No. 709 of October 15, 2009 and Legifrance). It can not oppose the exceptions that are purely personal and the principal debtor, by a decision of June 8, 2007, House Joint Court of Cassation held that the exception to the personal principal debtor, in this case the relative nullity drawn of fraud affecting his consent, may not be invoked by the surety (Cass. ch. Mixed, June 8, 2007, No. 03-15. 602). Likewise, the undertaking shall can not be greater than the debt as expressed in the bond. Thus it is considered that the person who became surety by limiting its commitment to pay the rent and charges payable by the tenant, can not be sued by the landlord because of what the outgoing tenant was slow to leave the premises at the end of the lease was liable to pay compensation of occupation. Section L. 341-4 of the Consumer Code as drafted by the Law of 1 August 2003, applies to the commitment of the individual who has become surety for the company he is managing. Under this provision, the penalty is manifestly disproportionate to the commitment of the security lies in the inability of the professional creditor to avail himself of this commitment, it follows that this sanction, which is not to repair an injury, do not appreciated the extent of the disparity cited above (Cass. com., June 22, 2010, No. 09-67. 814, BICC No. 731 of 15 November 2010 and Lexis-Nexis). and Legifrance). See note Valérie Robardet Avena-referenced in the Bibliography below.
Under section 2314 (ex-2037, Civil Code), which provision is applicable only in the presence of human 'Preferential', that is to say, the creditor rights conferring a special benefit for the recovery of his claim, unlike the general lien imposed by section 2092 of the Civil Code (1st Civ., 21 March 1984 Bull. 1984, I, No. 111, Com., May 10, 1994, Appeal No. 92-15. 881), the surety is discharged when the subrogation rights, mortgages and liens of the creditor can not, by the fact this creditor take place in favor of the bond. Thus, the creditor who took a pledge on the provisional goodwill of the debtor, and obtains the same day a bond for the surety to be subrogated, can he be confined strictly to act in his interest or he must take into account the interests of the bond, so that necessarily obliged to make the final pledge. The Supreme Court responded in the affirmative saying that "a creditor who, at the same time, is guaranteed by a bond and is an interim security guarantor undertakes to make the final security." (Mixed Chamber of the Court of Cassation on 17 November 2006, BICC No. 654 of 1 February 2007, Report of Mr. Cachelot Advisor Rapporteur, Ms. Petit First Notice of General Counsel).
After Judgement closing of the liquidation of insufficient assets, the surety who has paid in lieu of the debtor may pursue it, either by exercising subrogation provided that the creditor has stated his claim, either by exercising an appeal staff since it has itself declared its debt (Commercial, May 12, 2009, appeal No.: 08-13430, Legifrance). If she paid the debt in whole or in part before the opening of the insolvency proceedings the debtor and it is, by virtue of subrogation payment of vested rights and actions of subrogor rata payment made, and unless otherwise subrogor entitle the creditor to act in his place and without prejudice to the rules prevailing in the statement of claim by a third party, the surety only to declare his quality debt (Commercial 1 December 2009, appeal No. 08-12806 08 - 12,811 BICC No. 722 of 15 May 2010 and Legifrance. After the trial's closing liquidation of insufficient assets, the surety who has paid in lieu of the debtor may pursue it either by exercising subrogation provided that the creditor has declared his claim to be exercising a personal remedy since it has itself stated its claim (Commercial Division, May 12, 2009, appeal No. 08-13430, BICC No. 710 of 1 November 2009 and Legifrance). His debts were incurred at the date of the bond. (Com. - February 3, 2009, appeal: 06-20070, BICC No. 704 of 15 June 2009 and Legifrance.). On the whole matter see the note of Mrs. Filiol Raimond referenced in the Bibliography below.
When several people have made joint sureties of the same debtor for the same debt, when a co-surety is acting against the surety by subrogation to the rights of the creditor, the surety is entitled, under the rules governing subrogation, to oppose it with exceptions that it could assert against the creditor. (Com. Dec. 11, 2007. BICC No. 679 of April 1, 2008). The payment made by one of the sureties for the balance of any account under a settlement with the creditor necessarily affects the status of other guarantors who were not parties to this agreement, in that it has the effect off their debt and allow therefore the guarantor who has paid to exercise against them the remedy provided by section 2033 of the Civil Code, now section 2310 of the Code. (1st Civ. - July 12, 2007, BICC No. 671 of November 15, 2007).
Deputy bond is made by a person physical or moral commitment to pay in lieu of the bond principal when it fails. The sub-guarantee is in some ways, the main guarantor of the bond, it guarantees the security against the principal debtor and not the creditor's claim against the principal debtor, so that, except to seek responsibility of the bond for negligently failed to invoke the exceptions that it might have against the creditor, under-bond can not rely on exceptions inherent in the debt of the principal debtor. (Comm. May 27, 2008, appeal No. 06-19075, BICC No. 689 of October 15, 2008). See the Bibliography below, the reference in footnote Dominique Legeais). Given
company law, it is considered that the security given by a corporation is valid only if it enters directly into its purpose or whether there is a community of interest between the company and the person bonded , or if the result of unanimous consent of shareholders. and gives no legal basis for its decision, the appellate court that condemns a society on the basis of the bond she had purchased as collateral for a personal debt to his manager, without specifying that the security of this company met one these conditions. (1st Civ., November 8, 2007. BICC No. 677 of 1 March 2008).
Given that a person who has become surety commits all of its property and if the person or company for which it undertook to perform its obligations until then she could lose all of its property and therefore be in serious debt and even in situations of exclusion, Law No. 98-657 of July 29, 1998 said orientation law on the fight against exclusion has delayed the effects of commitments made by the surety
supplementing Article 2024 Civil Code and by enacting that the amount of debts arising from bond may not have the effect of depriving the individual who has become surety for a minimum of resources set out in Article L. 331-2 of the Consumer Code.
by introducing into the Consumer Code a new Article L. 341-1, under which any individual surety is informed by the professional creditor debtor default on the first principal payment incident unregulated in the month of the due date of payment. The professional creditor means one whose claim arose in the exercise of his profession or is directly related to one of his business, even if it is not main (1st Cass. civ., 9 July. 2009, No. 08-15. 910, BICC No. 715 of 1 February 2010 and Legifrance). If the creditor does not comply with this obligation, the deposit shall not be liable to pay penalties or interest on arrears accrued between the date of the first incident and the date she was informed.
A Case November 17, 2006 issued by the House Joint Court of Cassation (BICC No. 654 of 1 February 2007 Report of Councillor Mrs Aldigé reporter, Notice of General Counsel Mr. Jobard) ruled that the court violates this text of Appeal, in rejecting the request for bail, holding that if the information obligation must be respected even after the assignment of the bond payment, it is a different matter once the ruling condemning it to the payment of principal and interest has acquired the force of res judicata and that the bond can therefore , claim a lack of information subsequent to the date on which the decision ordering the payment of principal and subsequent interest at the contractual rate has acquired the force of res judicata.
Regarding the amendments made by Act No. 2003-721 of 1 August 2003 for economic initiative to Article L. 341-2 et seq Commercial Code apply to fidelity bonds, see: "Solidarity". See also: "Downstream".
Texts
Civil
C. civ. art. 601, 1253, 1740, 2011 and s.
C. consumption. art. Article L124-13 L125-18, L126-1 L143-13 L143-14 L225-35 L225-68 L511-33 et seq, L522-11, ff, L522-36, L525- 2, L622-28 L622-33 L643-11.
L. 84-148 of 1 March 1984, art. 48.
L. 86-1290 of 23 December 1986 art. 17 (leases rents).
L. Feb 11 94-126. 1994, art. 47. Commercial law
C. Commerce. L232-1 L321-6, L321-38 L522-11 L522-12 L611-10 L622-28 L626-11 L631-14 L631-20.
C. consumption. art. L313-7 et seq
L. 84-46 Jan 24, 1984 art. 60-I.
L. No. 94-126 of Feb. 11. 1994 Art. 47-II.
L. No. 84-148 of 1 March 1984 art. 48.
L. 85-98 of 25 Jan. 1985 art. 58 f. (Receivership).
L. 2003-721 of 1 August 2003 on economic initiative.
Act No. 89-462 of 6 July 1989 to improve rental and amending Act No. 86-1290 of 23 December 1986.
L. 2006-872 of 13 July 2006 on national commitment to housing.
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