As a result of a guarantee commitment given as security for the repayment of a loan, the act is called into question when the surety is called upon to pay. The court of appeal pronounces the nullity of the deed of guarantee, by applying to the letter the article L. 341-2 of the Code of the consumption (become article L. 331-1).
According to her, the undertaking had to reproduce the solemn, handwritten form imposed by law, and be followed by the signing of the bond. And not the opposite. It holds that “the handwritten statement written by the surety does not comply with the requirements (…) of the Consumer Code, since it appears below the signature of Ms. X, while this text imposes on the person who undertakes as guarantor to precede his signature with the obligatory handwritten mention “.
The judges of the substance also note that after the handwritten mention, the surety had affixed his initials and contested that it is signature. The credit institution then lodges an appeal in cassation in order to assert the validity of the undertaking of the surety. The question was therefore whether the initialling of the bond was worth here signature following the handwritten mention.
The Court of Cassation breaks the judgment and relaxes the rule. Senior magistrates prefer the effectiveness of the act, retaining that “the handwritten mention, whose text was in accordance with the provisions (of the Consumer Code) and which appears under the signature of the surety, is immediately followed by the initials of the latter, so that neither the meaning, nor the scope, nor, consequently, the validity of that mention was affected. “
It does not matter, therefore, whether the signature precedes the handwritten statement, since the latter is immediately followed by the initialling of the guarantor. From this to conclude that it follows from this judgment that the initials affixed to the deed of guarantee at the location of the signature is worth signing… This solution is part of a continuity of case law that softens the formalism imposed in matters of bond. For some time now, the high court no longer cancels, in effect, systematically the commitment of the surety, especially when the handwritten mention is not reproduced to perfection (modification of the text of the mention or omission of words… ). It does so only when the defects affect the meaning or the scope of this mention.