Bankruptcy Law

Article 2309, 2° of the Civil Code, which gave a guarantor, even before payment, a claim against the debtor for compensation in the event of bankruptcy or insolvency, and enabled the guarantor to declare his claim as a liability of the insolvency procedure, was repealed by the Ordinance of 15 September 2021 . However, this option has not disappeared altogether: it has been incorporated into the Commercial Code, in Article L. 622-34. This text now allows persons who have granted a personal guarantee, such as guarantors, to declare their claim to safeguard their personal recourse, even before payment, without being required to have been called upon beforehand or to have fulfilled their commitment. In the absence of a reference text, there is some doubt as to its application to the receivership procedure. Nevertheless, case law prior to the Ordinance of 15 September 2021 already allowed a guarantor, even before payment, to declare his claim as a liability of the procedure, in accordance with Article 2309, 2°, in order to safeguard his personal recourse .

Article 2309 of the Civil Code, resulting from the reform of the law on sureties, stipulates that a guarantor who has paid all or part of a debt is subrogated to the creditor's rights against the debtor. Thus, a guarantor who has paid the debt in full or in part before the debtor's insolvency procedure is opened has sole standing to declare his claim, unless an agreement authorizes the subrogating creditor to act in his place, and without harm to the rules governing the declaration of a claim by a third party . Full payment of the principal creditor by the guarantor after the opening judgment deprives him of the right to declare his claim, which is exercised, by virtue of legal subrogation, by the guarantor . However, the guarantor is not obliged to declare his subrogated claim when he has made the payment after the opening of the main debtor's insolvency procedure, and the creditor has himself declared his claim before the payment, even if this took place before the expiry of the legal deadline for declaration . In addition, a sub-guarantor who has repaid the principal guarantor is entitled to declare his claim even if the principal guarantor has himself declared his claim .

Ord. 2021-1192 of 15 September 2021 reforming the law of sureties.

Cass. com. 30 January 2019, LawLex202100002182JBJ (LJ). See also Cass. com., 2 March 1993, LawLex202100002177JBJ (LJ), specifying that the subrogatory action of the guarantor before payment, requires him to declare his personal claim for indemnity to the insolvency procedure, even if the disinterested creditor has himself declared.

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

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

Cass. com. 22 September 2009, LawLex202100002176JBJ (RJ). See also Cass. com., 29 October 1991, LawLex202100001085JBJ (RJ), holding that the debtor's guarantor has a personal claim for indemnity against the latter, which it is entitled to declare notwithstanding the declaration made by the creditor.

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

427. Security deposit