Bankruptcy Law

Undeclared claims and security interests may not be asserted against creditors, nor against natural persons who are co-obligated, or who have granted a personal security interest, or who have assigned or transferred an asset as security, by virtue of Article L. 622-26(2) of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14.
On the other hand, if the ab …

Action against the guarantor

Undeclared claims and security interests may not be asserted against creditors, nor against natural persons who are co-obligated, or who have granted a personal security interest, or who have assigned or transferred an asset as security, by virtue of Article L. 622-26(2) of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14.

On the other hand, if the absence of a declaration does not extinguish the claim, the creditor may still take legal action against the guarantor . However, an action for payment against the guarantor requires the bank to provide proof of its claim, other than 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 guarantor's claim period does not run . Like the defaulting creditor, the guarantor who has not declared his claim to the principal debtor's insolvency procedure cannot take action against his sub-guarantor to obtain payment of sums advanced on the basis of the claim declared by the principal creditor, to whom the sub-guarantor is not bound .

Article 2298 of the Civil Code allows the guarantor to raise against the creditor all exceptions, whether personal or inherent to 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, who he knew did not have the capacity to contract, is bound by his commitment. 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 that may be invoked by the guarantor to avoid his commitment . However, the guarantor may still avail himself of the provisions of Article 2314 of the Civil Code, under which, when subrogation to the creditor's rights can no longer take place in his favor through the creditor's fault, he must be discharged to the extent of the damage he has suffered. In fact, when the creditor, who could only have been 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, likely to be transmitted to him by subrogation . Where the guarantor alleges fault on the part of the creditor, it is up to the creditor to prove that the loss of the preferential right complained of caused no harm to the guarantor, i.e. that in view of the sums available, the guarantor would have had no chance of being paid . The court cannot conclude that there is no such chance on the sole basis of the unsecured nature of the claim .

Comp. on the extinction of a claim that has been irregularly declared and as such rejected by the bankruptcy judge, and the correlative extinction of the security that 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 “whatever its nature”.

Bankruptcy Law

433. Action against the guarantor

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433. Action against the guarantor

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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