Extract
[...] However, cases of validation of guarantee on this basis concern very direct counterparts. However, in this case, it is not the SCI guarantor, but the SNC that benefits from a counterpart to the conclusion of the guarantee deed, thus allowing the Bank to reassure it so that it grants the loan requested. From then on, since the counterpart drawn by the SCI is not really direct, the guarantee could not then be saved. From then on, if the SNC fails to repay its installments, and the Bank turns to the SCI, the latter can invoke the nullity of the guarantee deed for contrariety to its social interest. [...]
[...] The first civil chamber of the Court of Cassation thus clarified, in a decision dated 8 November 2007 (n 04-17.893), that « the guarantee given by a SCI is only valid if if it directly enters its social object or if there is a community of interests between this company and the person being guaranteed or even if it results from the unanimous consent of the associates ». In order for this condition to be met, the three possible alternatives are: either the ability to act as a guarantor is explicitly provided for in the statutes, or the entire membership has ratified the guarantee, in accordance with Article 1852 of the Civil Code, or a community of interest exists between the SCI and the SNC being guaranteed. A community of interest generally implies that the companies are linked by a capital link. This is particularly the case when a lease contract is concluded between the guarantor company and the debtor company. In this case, we do not have any information on the provisions of the SCI's statutes other than that its object isthe acquisition, management and leasing of all commercial premises ». It is thus not possible to determine if the ability to guarantee is provided for. [...]
[...] However, the deed for which it has acted as guarantor is a loan contract of 250,000 euros. Therefore, in the event that the SCI has acted as guarantor for the entire amount borrowed by the SNC, it is likely that in the event of the SNC borrower's default, the SCI will be required to liquidate its cash but also its immovable property in order to meet its commitment. Thus, in the event of the SNC's default, the SCI may be required to sell its only immovable asset to honor the guarantee, even if the guaranteed amount is less than the value of its immovable property. [...]
[...] She further specifies that, in her opinion, the guarantee granted by the SCI SPORT du PORT is null and void. The bank comes to consult you. What do you think? The two companies of which Jeanne, Mathilde, Aurélien and Philippe are associated follow a classic scheme in which the SCI 'SPORT DU PORT' (the SCI) owns the building within which the SNC 'FACOSPORT' (the SNC) exercises its activity. The CREDIT-PLUS bank (the Bank) raises doubts about two operations carried out with these two companies. [...]
[...] In this regard, the jurisprudence is well established and elevates the condition of conformity to the social interest to a true condition of validity of the security. This is notably the position of the Court of Cassation that emerges from the decision rendered by the Commercial Chamber on September (n°13-17.347). However, the notion of contrariety to the social interest is an obscure notion that has not been defined by the legislator. The jurisprudence, however, considers that the security is contrary to the social interest of the constituent society when its realization is of a nature to compromise its existence. [...]
