Suretyship, Guarantee Law, Right of Retention, Pledge of Claims, Creditor Rights, Debtor Obligations, Civil Code, Contract Law, Security Interests
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Abstract
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Abstract
This document outlines the principles and effects of suretyship and guarantee law, including the formation and effects of suretyship, the right of retention, and the pledge of claims.
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[...] ° fraud is often absorbed by the duty of warning banks vis-à-vis sureties ? If this duty is correctly performed, fraud becomes difficult to prove. =in case of violence against the surety, consent is tainted. The capacity and the power The surety and the creditor must have the capacity (of contracting and acting in their own name), nonetheless, for the question of power, there are different cases : LEGAL COMMUNITY OF SPOUSES 1. EXPLICITLY AUTHORIZED CAUTION BY THE OTHER SPOUSE ? The guarantee A obtains the authorization of B to caution ? [...]
[...] releases the guarantee ? third party substituted in the creditor's rights and can act against C. 2. DEBT ASSIGNMENT ? guarantee remains engaged towards the new creditor (1321 CC). II) The extinction of the guarantee by main way Extinction of guarantee for present debts 2313 - C.CIV ? « The obligation of the guarantor extinguishes by the by the same causes as other obligations. » Payment of the guarantee. Compensation, discharge of debt, novation, prescription, etc. EXCEPTION ? 2320 - C.CIV ? [...]
[...] Com 2002 : Return to an obligation of result. Ordo 2006 : letter of intent is a personal surety ( [...]
[...] =torn by the JP. CASS. - MIXTE - 8 JUNE 2007: The surety cannot oppose the debtor's purely personal exceptions (the surety could therefore not rely on a deceit suffered by the debtor). vice of consent = personal to the debtor / prescription = non-personal and opposable to the surety. ART. 2298: "the surety can oppose to the creditor all the exceptions, personal or inherent to the debt, here belong to the debtor, subject to the provisions of the second paragraph of article 2293 ART - AL. [...]
[...] Effects of Pledge 1. Transfer of ownership: No transfer of ownership to the creditor (except for fungible/consumable goods). 2. Obligations of the Creditor : ? Conservation of the thing: The creditor must not use the thing, at the risk of damages and interest. ? Right of Retention: As long as the debt is not paid, the creditor may keep the pledged thing. 3. Fictitious Retention (Art al. 4° Cciv): The creditor may act as if he held the property, even if he does not physically possess it. [...]
