Autonomous guarantee, company split, universal transmission, TUP, contract law, French law, Court of Cassation, Commercial Code, Civil Code
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Abstract
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Abstract
The Court of Cassation rules that an autonomous guarantee is not automatically transferred in a company split without an express clause or bank consent.
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[...] Conclusion : the Court of Cassation reinforces the protection of the guarantor in preventing him from seeing his commitment modified by legal restructuring that he does not control. However, this position could be criticized from an economic point of view, as it rigidifies the use of autonomous guarantees in merger and acquisition operations. Course Notes Reminder the independence of the autonomous guarantee : the fusion or scission does not allow its transmission without agreement. The autonomous guarantee is better for creditors: we can ask to be paid even in case of default (this will be at their expense to turn against the debtor. [...]
[...] The autonomous guarantee being a distinct obligation, it does not automatically follow the guaranteed obligation in the event of a split, unless a contrary clause. ? The act of split did not explicitly mention the transmission of this guarantee, and the bank did not give its consent to such a transfer. - Grounds of the company Nouvelle les Grandes Rousses (defendant in the appeal): ? The universal transmission of the assets, consequence of the split, extends to the entire rights and obligations attached to the transferred activity, including the autonomous guarantee. [...]
[...] This approach considers that the intransmissibility of the autonomous guarantee is only justified by its autonomy in relation to the guaranteed obligation. ? It admits that the guarantee does not transmit automatically with the guaranteed claim but supports that it can be transmitted universally (notably in case of succession or merger). ? Certain authors, such as Philippe Simler, defend this vision and believe that the autonomous guarantee is part of the beneficiary's assets and should be transmitted in case of merger or split. [...]
[...] 15-19.158 - Autonomous Guarantee and TUP - Case Summary Com. January No. 15-19.158 - Autonomous Guarantee and TUP The company Hôtel les Grandes Rousses (the beneficiary company) concluded, on 26 October and 9 November 2004, a lease-management contract covering its hotel-bar-restaurant business with the company HMC les Grandes Rousses (the lessee-manager). In accordance with this contract, the Regional Caisse de Crédit Agricole mutuel Pyrénées Gascogne (the bank) granted the beneficiary company an autonomous guarantee at first request, granted on 3 November 2004, guaranteeing the lessee-manager's obligations. [...]
[...] The judgment of 31 January 2017 ruled in favor of the second approach and confirmed that the autonomous guarantee is non-transferable, even in the context of a split . - Critiques and limitations of the decision The main criticism made to the decision is its character too general. Certain authors believe that it would have been necessary to differentiate the autonomous guarantees at first simple, documentary or justified request. In fact, the degree of constraint for the guarantor varies according to the type of guarantee, which could have justified a more nuanced treatment. [...]
