Extract
[...] Article 2315 of the Civil Code provides that in the event of an indefinite guarantee, the guarantor may unilaterally bring it to an end, provided that a notice period is respected. In this case, François has guaranteed a debit authorization of ?100,000. This does not mean that the principal debtor has a debt of ?100,000 to the bank. The debt will only be formed by the amounts used. Thus, François will only be held to pay the amounts used by the company, if they have not already been paid and the company is in default (which is the case in this instance). However, no duration is indicated for the guarantee. [...]
[...] plus interest, fees and accessories. By waiving the benefit of discussion I recognize that I cannot require the creditor to first pursue the debtor.' The credit file indicates that in 2020 François was receiving substantial income as president of the SAS MACO. Katia was an executive in a company, she held no position in the SAS, nor did Pascal who was then a student. In addition, to facilitate the obtaining of this credit, the LAFLEUR SA company has established a letter whose main terms are as follows: « We have taken good note of your proposal to grant an investment credit to the MACO SAS company. [...]
[...] The shareholders of the MACO company are : - François MARTIN, majority partner, holder of 50% of the capital and president of the SAS, - Katia MARTIN, wife of Pascal who holds of the capital, - Pascal MARTIN, brother of François who holds of the capital, - The company LA FLEUR, SA holding 40% of the capital Several credits have been granted to the company MACO : A loan of 600,000 ? granted in February 2020 for the financing of various equipment. This credit has a duration of 84 months. There is still 200,000 ? in capital due for this credit. It is guaranteed by a pledge of the financed material and by the personal guarantee of the physical persons who are associates. On the guarantee deed, Katia preceded their signature with the following statement: undertake as a personal and solidary guarantor to the tune of 600,000 (six hundred thousand) ? [...]
[...] In the absence of this, there may be nullity. Article 2297, paragraph specifies that the joint and several guarantee must be express. In accordance with Article L. 331-1 of the Consumer Code, the handwritten mention of paragraph 1he of Article 2297 of the Civil Code is required for validity. In this case, only Katia wrote the handwritten mention imposed by Article 2297, paragraph 1he of the Civil Code. Thus, since the 2021 reform, only Katia should be engaged as a guarantor, since the other physical persons did not write any handwritten mention. [...]
[...] However, the weakness of this guarantee is that the guarantor can bring it to an end at any time and unilaterally. C. Common means of defense for the two guarantees The problem is as follows: can the guarantors oppose the bank with the non-compliance of an information obligation during the execution of the contract to refuse to pay? Pursuant to Articles 2302 and 2303 of the Civil Code, applicable even to guarantees concluded prior to the 2021 reform, the professional creditor is bound by two information obligations towards physical person guarantors: - The annual information, relating to the amount of the debt and the remaining interest due as of December 31 of the previous year. [...]
