Bankruptcy Law

Undeclared claims and securities are unenforceable not only against creditors, but also against natural persons who are co-obligated, or who have granted a personal guarantee, or who have assigned or transferred property as security, pursuant to Article L. 622-26(2) of the Commercial Code. On the other hand, as long as the absence of a declaration does not have the effect of extinguishing the clai …

Action for payment against the guarantor

Undeclared claims and securities are unenforceable not only against creditors, but also against natural persons who are co-obligated, or who have granted a personal guarantee, or who have assigned or transferred property as security, pursuant to Article L. 622-26(2) of the Commercial Code. On the other hand, as long as the absence of a declaration does not have the effect of extinguishing the claim, the creditor can always sue his guarantor . The action for payment against the guarantor implies, however, that the bank justifies its claim, other than by its mere admission, by producing the insertion in the BODACC (Official Bulletin of Civil and Commercial Announcements) of the notice of deposit of the statement of claims, without which the deadline to act against the guarantor does not run . A guarantor who has not declared his claim in the principal debtor's insolvency procedure cannot act against his sub-guarantor to obtain payment of the sums advanced on the basis of the claim declared by the principal creditor, to whom the latter is not bound, any more than a defaulting creditor can .

Article 2298 of the Civil Code allows the guarantor to raise against the creditor all the exceptions, personal or inherent in the debt, which belong to the debtor, subject to the provisions of the second paragraph of article 2293, which provides that a guarantor of a natural person whom he knew to lack the capacity to contract is bound by his obligation. The creditor's failure to declare his claim, which excludes him from distributions and dividends but does not extinguish his claim, does not constitute an inherent exception to the debt which may be invoked by the guarantor to avoid his obligation . However, the guarantor may always avail himself of the provisions of Article 2314 of the Civil Code, under which, when subrogation to the rights of the creditor can no longer be effected in his favor through the latter's fault, he must be discharged to the extent of the harm he suffers. In fact, where the creditor, who could only be aware of the published decision to open the debtor's insolvency procedure, has failed to declare his claim, the guarantor is discharged from his obligation if it is established that he could have derived an effective benefit from the right to be admitted to the distributions and dividends, which could be transmitted to him by subrogation . Where the guarantor invokes the creditor's fault, it is up to the creditor to prove that the loss of the preferential right of which he complains caused him no harm, that is to say that, in view of the sums available, he would have had no chance of being paid . The court may not conclude that the creditor had no chance of being paid on the sole ground that the debtor had no preferential right . 

Comp. on the extinction of a claim irregularly declared and as such rejected by the bankruptcy judge, and the correlative extinction of the security which guarantees it, Cass. com. 4 May 2017, LawLex202100001496JBJ (S).

Cass. com., 15 June 2011, LawLex202100002220JBJ (LJ).

Cass. 1re civ., 7 May 2002, LawLex202100001070JBJ (LJ).

Cass. com., 12 July 2011, LawLex202100001173JBJ (LJ).

Cass. com., 16 September 2014, LawLex202100002223JBJ (LJ) ; Cass. 1re civ., 3 July 2013, LawLex202100002225JBJ (LJ).

Cass. com., 8 April 2015, LawLex202100002226JBJ (RJ) ; 9 May 2018, LawLex202100002228JBJ (LJ).

Cass. com, 19 February 2013, LawLex202100001063JBJ (LJ). See also Cass. com., 16 September  2014, LawLex202100002223JBJ (LJ) and Cass. 1re civ., 3 July 2013, LawLex202100002225JBJ (LJ), which reject the action of a creditor who has not declared his claim “regardless of its nature.”

Bankruptcy Law

168. Action for payment against the guarantor

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168. Action for payment against the guarantor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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