Extract
[...] The judgment having been rendered in 2006, banking law and banking doctrine have strongly questioned this freedom. We first think of Article L.313-12-1 of the Monetary and Financial Code imposing on the banker an obligation to motivate in the sole framework of corporate credit, therefore in a certain way, we can wonder if this text would not question the principle according to which the « the banker is always free to refuse a loan and this without justifying his decision, as formally stated in 2006 by the Plenary Assembly of the Court of Cassation. [...]
[...] ASSEMB OCT - N°06-11056 - BULL. If Fides was the goddess of the good faith and the guardian of honesty in Roman mythology, she has never ceased to inspire the drafters of our law to the measure of the writing of the Civil Code. This key principle is the pierre angulaire de toutes relations contractuelles, since good faith is the source of the confiance, or, Fides had also had the role: that of sacralize the integrity of transactions between men. [...]
[...] The refusal of credit grant at the test of the banker's liability commitment The refusal of credit grant is found in the judgment rendered by the Plenary Assembly put to the test of the banker's liability commitmentA), since it is this same refusal that has been the subject of an appeal in cassation. In fact, if the Plenary Assembly of the Court of Cassation sanctifies the principle according to which "the banker is always free, without having to justify its decision which is discretionary, to propose or to consent to a loan in whatever form, of to abstain or to refuse to do so », the appeal judgment, which was censured for having adopted a radically different decision, does not agree. [...]
[...] In reaction, the credit institutions make a complaint to the appeal judgment, seeking cassation. The question thus arises as to whether does the banker who abstains from proposing to a group of companies a financing consisting of limited recourse loans, even though he had granted to certain assignees of operations of the same group sufficient participations, suffice to engage his liability for shortcomings in his obligations as a banker mandatary ? By partial cassation of the appeal judgment, in its most solemn formation, the Court of Cassation, through its Plenary Assembly, citing articles 1134 and 1147 of the Civil Code, enunciates the general principle that «except in cases where it is bound by a prior commitment, the banker who is always free, without having to justify his decision which is discretionary, to propose or grant credit in whatever form, to abstain or refuse to do so. ». [...]
[...] The appeal court addressed the question of granting credit as an obligation for the bank, but in this case, the bank having granted the said contract to the assignees, had to verify in parallel the solvency of the latter, and the same for the group of companies, in collective proceedings on the same occasion, which justifies the refusal opposed to them, a refusal that is intended to be « free» for the Plenary Assembly and this « without having to justify its decision which is discretionary ». However, due to the serious nature of the credit contract, it fundamentally makes sense to censor the appeal judgment, it would be very dangerous to establish jurisprudentially such an obligation on the one hand and unjust on the other hand to hold the bank responsible for such a refusal which makes sense in view of the circumstances of the case. It is also quite difficult to understand why the judges of the first instance consecrate such an obligation. [...]
