Guarantee Contract Validity and Proportionality Assessment

Extract

[...] When he signed the guarantee, Mario placed his signature before the mandatory mentions. He also committed to guaranteeing the amount of ?32,500 over a period of 7 years. The bank summoned him to pay approximately ?40,000 in respect of the two guarantees he had given. The question is whether the first guarantee is valid and secondly whether the nullity of the first guarantee could affect the assessment of the proportionality of the second guarantee In preliminary, the guarantee is the contract by which a surety undertakes to pay the debt of the debtor if the latter defaults (Article 2288 paragraph 1 of the Civil Code). [...]

[...] In this case, Marion could not reasonably, in light of her assets and income, commit as a guarantor for an amount of ?24,000 in the first instance, and in the second for an amount of ?32,500, and this despite the first guarantee being null because the manifest disproportion is assessed at the time the guarantee contract was concluded. Thus, the nullity of the first guarantee has no effect on the assessment of the proportionality of the second guarantee, which is evaluated in relation to the guarantor's capacity at the time of the conclusion of the guarantee contract. [...]

[...] Before 2021, the guarantor had to affix their signature after a mandatory mention prescribed by the former article L331-1 of the Consumer Code. In this case, Mario affixed his signature before the mandatory mentions. The handwritten commitment of the guarantor is null as soon as the mandatory mention is inscribed under the guarantor's signature, without reiterating the signature under the said mention (Com September 2013, n°12-13.557). Thus, the guarantee subscribed by Mario is null due to the position of the mention, not being followed by his signature. [...]