La formation: Le consentement de la caution

Question 1

LE CONSENTEMENT DOIT ÊXISTER

Answer 1

L’article 2294 du CCiv (ancien 2292) pose le principe que le cautionnement ne se présume pas et doit être expresse. Cet article pose une règle d’interprétation qui signifie que la volonté de s’engager comme caution doit être exprimée par une sorte de contrepoids naturel – ce n’est pas une règle de forme.

Question 2

LE CONSENTEMENT DOIT ÊTRE ÉCLAIRÉ

Answer 2

The intensity of the risk to which a guarantor is exposed depends on a creditor-debtor relationship over which the guarantor has no control (as a third party to the contract)

Question 3

L’erreur de la caution

Answer 3

Article 1132 presupposes that the guarantor was mistaken as to the essential qualities of the performance due or the essential qualities of his contracting partner

Question 4

L’erreur obstacle, c’est une erreur si grave qu’elle fait disparaître le consentement. Parfois lorsque les capacités de la caution ne permettent pas de comprendre le cautionnement. ex: pauvreté et inexpérience

Answer 4

Errors on the substance: when it relates to the essential qualities of the service owed or to those of the contracting party. Error as to the person of the co-contractor is excluded because the creditor and the surety have no intuitu personae.

Question 5

Example: a guarantor hired to allow the current account to continue, but which the creditor would have closed immediately. Or a guarantor who thinks that there are other securities which are not constituted. Often linked to the solvability of the debtor.

Answer 5

Recently the ccass recalled that the error of insolvency should remain irrelevant, unless it could be shown that this situation was the essential element of the undertaking. But to make the taking into account of this error subject to the condition that it has been written into the guarantee (express wording) that it is a condition is unthinkable.

Question 6

The Commercial Chamber has been liberal for the last fifteen years, since 2002 it has decided that the cancellation of the guarantee for error is not subordinated to an express clause but only to the proof that solvency was a determining condition for the guarantor.

Answer 6

Arret 19 May 2015, in this case, the trial judges had noted that the guarantor had only committed to the condition that the company’s accounting situation was healthy; however, the situation was already irremediably compromised even before the signing of the deed and this was only revealed after the signing of the contract. The Court of Cassation confirmed the Court of Appeal’s decision to uphold the nullity for error because solvency was a determining condition and the situation was already irremediably compromised.

Question 7

Le dol

Answer 7

depuis la reforme 2016 sanctionné par l’article 1137 qui a modernise la définition en distinguant les deux formes que le dol peut prendre.

• Dol par commission : obtenir consentement par des mensonges
• Dol par omission : réticence dolosive : dissimulation intentionnelle par l’un des co-contractants d’une information qu’il sait déterminante pour l’autre partie

Question 8

Le dol du créancier: 2 conditions

Answer 8

1. The creditor’s behaviour: each time the creditor knowingly deceives the guarantor on a decisive element of his commitment: the creditor will have lied about the debtor’s situation for example, by sending a truncated compatibility. Reticence by fraud (art 1137 al 2) –> when he knew on the day of the guarantee that the solvency of the debtor was irremediably compromised and that he omitted to inform the guarantor (First Civil Chamber in a judgment of 10 May 1989)
2. the capacity of the guarantor.
   fraudulent concealment should suppose that the guarantor’s lack of knowledge was legitimate. When the guarantor is avertie, his error is legitimate from the moment he demonstrates that the creditor had information about the debtor to which he himself did not have access => dissymmetry of information. General information obligation during the negotiation, the party must inform the other if the information is crucial for the other party.

Question 9

Le dol du débiteur?

Answer 9

Case law has deduced that if the guarantor can invoke the fraud of the creditor, he cannot invoke the fraud of the debtor because he is not a co-contractor

Then the refusal of fraud became incoherent in positive law since a decision of 29 May 2001, the Court of Cassation admitted that when fraud emanates from a co-surety the surety can invoke fraud; even if the co-surety has committed himself by a separate act.

Third party in collusion, that is, the secret or tacit agreement, may provide an entry point for the debtor’s fraud. → Art 1138 “Fraud is also constituted if it emanates from the representative, business manager, servant or porte-fort of the contracting party. It is also constituted where it emanates from a third party in collusion.”