Bankruptcy Law

Article 2309, 2° of the Civil Code, which granted a guarantor, even before having paid, an action against the debtor in order to be compensated when the latter had gone bankrupt or was insolvent, and allowed him to declare his claim as a liability of the insolvency procedure, was abrogated by the Ordinance of 15 September 2021 . However, this option has not completely disappeared, but has been inc …

Guarantor

Article 2309, 2° of the Civil Code, which granted a guarantor, even before having paid, an action against the debtor in order to be compensated when the latter had gone bankrupt or was insolvent, and allowed him to declare his claim as a liability of the insolvency procedure, was abrogated by the Ordinance of 15 September 2021 . However, this option has not completely disappeared, but has been incorporated into the Commercial Code, in Article L. 622-34. This text now allows persons who have granted a personal guaranteen to proceed, even before payment, with the declaration of their claim to safeguard their personal recourse, without it being required that they have been called upon beforehand or that they have fulfilled their commitment .

Article 2309 of the Civil Code, resulting from the reform of the law of securities, provides that a guarantor who has paid all or part of the debt is subrogated in the rights that the creditor had against the debtor. Thus, a guarantor who, before the opening of the debtor's insolvency procedure, has paid the debt in whole or in part, has sole capacity to declare his claim, unless an agreement authorizes the subrogating creditor to act in his place and without harm to the rules specific to the declaration of a claim by a third party . The payment in full of the principal creditor by the guarantor after the opening judgment deprives him of the right to declare his claim, which is exercised, by way of legal subrogation, by the guarantor . Nevertheless, the guarantor is not obliged to declare his subrogated claim when he has made the payment after the opening of the insolvency procedure of the principal debtor, and the creditor has himself, before the settlement, declared his claim, even if this took place before the expiry of the legal time-limit for declaration . In addition, a sub-guarantor who has paid off the principal guarantor is entitled to declare his claim even if the latter has himself declared his claim .

Finally, the payment made by the guarantor, which gives him a subrogated recourse against the debtor, requires him to declare his personal claim for indemnity to the insolvency procedure, even if the reimbursed creditor has himself declared .

Ordinance No 2021-1192 of 15 September 2021 reforming the law of securities.

Cass. com., 30 January 2019, LawLex202100002182JBJ (LJ).

Cass. com., 1st December 2009, LawLex202100002192JBJ (LJ).

Cass. com., 12 October 1999, LawLex202100002183JBJ (LJ) ; 13 April 1999, LawLex202100001062JBJ (RJ).

Cass. com., 22 September 2009, LawLex202100002176JBJ (RJ).

Cass. com., 4 October 2005, LawLex202100002180JBJ (LJ).

Cass. com., 2 March 1993, LawLex202100002177JBJ (LJ) ; 29 October 1991, LawLex202100001085JBJ (RJ).

Bankruptcy Law

162. Guarantor

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162. Guarantor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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