As a surety, the bank asks you to pay the loan you have taken out for your business. In which cases can you cancel the bonding contract or at least reduce the amount you owe?
Consent must not have been given in error; because physical or moral constraints have been exercised or because the surety has been manipulated by the creditor (being manipulated by the debtor is not sufficient to void the bond), for example having lied or concealed facts about the situation of the debtor.
Thus, a creditor who makes a bond of surety, without informing the future surety that the debtor is definitely insolvent (for example a judicial liquidation procedure), commits a fraud.
A professional creditor can not rely on a suretyship contract entered into by a natural person whose commitment at the time of his conclusion was manifestly disproportionate to his property and income.
If the expected income from the guaranteed operation can not be taken into account in assessing the disproportionality of the security at the time it was taken out, it must, on the other hand, be taken into account the regular income received by the surety until the date of its engagement, even if these would come from the company whose commitments are guaranteed by the suretyship (Cass.. 5-9-2018 No. 16-25.185 FS-PB). Still, they must be regular; thus, an exceptional income (for example from the sale of a good) should not be taken into consideration.
However, the bond returns if, on the day it is called, the bailder’s financial situation has improved and enables him to meet his obligations.
The guarantee contract must include the handwritten mention provided for by article L 341-2 of the French Commercial Code (for a loan agreement) or the mention provided for by the law of July 6, 1989 + manual reproduction of article 22-1 Law No. 89-462 of 6 July 1989 (paragraph 1) which specifies the conditions under which the surety may terminate his commitment (for a lease) or the handwritten signature of the surety.
This assumption refers to the novation of the contract, that is to say its renewal by tacit renewal or the renewal of a lease expired. The renewal of the contract automatically releases the bond, which can only be held for the payment of debts incurred before.
Exceptionally, the renewal does not release the bond when the guarantee contract provides for a clause covering the renewal.
The limitation periods vary according to the nature of the claims. After this period, neither the organization nor the surety are liable for unpaid bills.
For a residential rent, the limitation period is 3 years.
For the repayment of a loan, the limitation period is 2 years. The starting point for the limitation period differs depending on whether the action relates to unpaid monthly payments or outstanding capital. In the first case, the prescription runs from the due date of each monthly payment; in the second, from the lapse of the term of the loan (which entails the immediate payment of all the sums due).
In principle, an officer remains liable to pay the debts of which he is a surety, even after the termination of his duties.
If the suretyship contract indicates that his surety is related to the exercise of his functions, it is enough for him to resign so that the surety ceases to produce its effects.
If the contract does not contain a term, the director who has ceased his duties may at any time request the termination of his engagement. This faculty is a consequence of the prohibition of perpetual engagements. It remains little practiced, either because the surety ignores it (this is probably why the recent texts require creditors who have granted credit to a company, guaranteed by a bond, to remind the surety the existence of this prerogative ), because the creditor immediately makes an argument to put an end to the credit.
To be validly exercised, the termination must comply with the conditions laid down in the deed of guarantee, if any, and clearly show the intention of the manager to suspend his guarantee on the date of termination. The mere notification of the end of his duties is not enough to release him from his engagement.
This is not necessarily enough to make him miss any payment. The Court of Cassation has decided that the guarantor who undertakes to guarantee, without any determination of purpose or duration, the obligations contracted or which would be payable by the debtor to the creditor, must be guaranteed by all fixed-term obligations agreed upon prior to the unilateral termination of the bond, even if the performance of these obligations would continue, by virtue of the contractual stipulations, after the date of such termination. However, a manager who ceases his duties and whose surety is not destined to disappear may obtain from his successor that he surety and obtain from the creditor that he accepts surrogacy sureties.
Note that if the organization is the subject of a collective procedure, sureties are the subject of specific provisions.
The deposit is released:
The surety is relieved of his obligation, in proportion to his loss, when he can no longer act against the debtor in repayment of sums paid by the creditor. Any contrary clause is null. This refers to the following cases:
The deposit is not discharged if:
In this case, the guarantor will not be able to obtain the cancellation of his commitment but only a reduction of the amount that he owes.