Bonding is a contract that binds three parties: the creditor, the debtor and the surety . According to article 2288 of the Civil Code, ” He who becomes surety of an obligation submits to the creditor to fulfill this obligation, if the debtor does not satisfy himself” . In other words, the guarantor agrees to pay the debt owed by the debtor, if he does not settle it to his creditor.
It is therefore a heavy commitment for the surety and as its name indicates in English (caution means caution), one must always be very careful in the matter.
Once a third party agrees to pay, in whole or in part, the debt of others, it is a bond.
Nevertheless, a deposit is not presumed (Article 2292 of the Civil Code). This means that the surety must expressly agree. The creditor’s agreement can be presumed. This solution is quite logical, since the commitment of the surety is heavier than that of the creditor. In the event of withdrawal, the deposit will have the effect of imposing on him a debt, while for the creditor, the acceptance simply leads to having more chances to recover what is due to him.
If it is not mandatory, it is however strongly recommended to establish a writing , in order to well define the guarantee and its extent, if only for reasons of evidence. In addition, in the case of a suretyship with a professional (bank in particular), the Civil Code requires the handwritten copy of particulars (Article 1326 of the Civil Code). The obligation that these mentions are handwritten is a measure that aims to make the surety aware of the extent of his commitment. It is also in this context that the Civil Code requires that the consent of the surety be given expressly, that is to say, that leaves no room for doubt (Article 2292 of the Civil Code).
The effects of bonding
The bond is the commitment to pay the debt of the debtor . It is therefore an accessory debt: without initial debt, the bond no longer exists. This ancillary nature is essential: concretely, this means that all the exceptions that the debtor can oppose to the creditor, the surety may also.
However, this statement is nuanced by the jurisprudence of the Court of Cassation. When the exception invoked by the debtor is personal , then the surety can not invoke it in turn. Thus, even if the creditor waives payment to the debtor, this does not mean that the surety is released: the obligation to pay the debt is still valid for him.
The creditor, anxious to recover his due, may ask to have several sureties : this is the case of suretyship subscribed by both spouses for example. In this case, the sureties are usually held in solidarity. In other words, if one bond fails, the other will have to bear all the debt. It is not a proportionate share of the debt: both are held for the whole.
The suretyship subscribed by spouses is always somewhat problematic. It is possible that the spouses are married under the regime of the community of property , which is the most common regime, because it does not assume a particular contract at the time of marriage. This is the basic diet. This regime is disadvantageous for the creditor because the spouse can not commit the commons (Article 1415 of the Civil Code). He can only pledge his own property, which limits the possibility for the creditor to recover his claim. This is why, generally speaking, in the face of a couple, the creditor will ask for a joint guarantee from both, in order to be able to seize the entirety of the property found in their patrimony.
Who can stand surety?
The bond is a serious act of consequences, not everyone can stand surety . Thus, the minors (except emancipated), the majors under guardianship, even with the agreement of the guardian or the council of family, can not stand surety. On the other hand, the adults under curatorship, with the assistance of the curator, can stand surety.
Remedies against the debtor
The guarantor, in that it pays a debt that is not his own, will in turn be able to claim payment from the debtor. In fact, when it pays instead of the debtor, the surety is subrogated to the original creditor, that is to say, it recovers all the rights that the creditor had. It then benefits from all the rights, privileges and actions of the latter against the debtor or third parties.
However, there are two possible cases for which the guarantor loses his recourse against the debtor:
- If the surety pays the creditor without notifying the debtor, who also paid;
- If the surety pays when it was not prosecuted and without notifying the debtor, while the latter could assert a case extinguishing his debt.
The end of the suretyship
Several events can end the bond, including:
- The payment of the debt by the debtor;
- Debt forgiveness, that is, the creditor may waive the security and release the bond;
- Novation, ie the substitution of another bond accepted by the creditor.
- Civil Code, Art. 1108 et seq., 1287, 1397, 1415, 1325 and 1326, 1341 and s., 1740, 2287-1 to 2320
- Monetary and Financial Code, Art. L. 313-1, L. 313-21, L. 313-22, L. 313-42
- Commercial Code, Art. L. 225-35, L. 225-68, L. 236-14, L. 511-5, L. 511-21, L. 511-34, L. 622-28, L. 622-31, L. 626-11, 643-11