The contract law reform, resulting from the ordinance n ° 2016-131 of February 10th, 2016 (1), applicable to any contract concluded as of October 1st, 2016, integrates in the civil code new provisions which are intended to s apply at the time of formation of a surety bond. In the absence of a comprehensive reform of this security, yet regularly sought by the doctrine (2), this new contract law is an opportunity to clarify or amend certain solutions and principles adopted, previously stated in the civil code, are gradually affirmed by the case law. Several questions are needed in the light of the new wording of the provisions relating more specifically to the formation of contracts: what is the scope of the pre-contractual duty of information applicable to the surety? How to articulate this duty with that of warning imposed on creditors? What are the implications for surety contracts of the new reasons for reasons-based error and abuse of dependency abuse? Finally, does the qualification of an adhesion contract adapt to this security? These are the questions, among others, raised by the study of the scope of the February 2016 reform on the formation of the bonding contract. Beyond the contributions and uncertainties of the reform that will be developed to answer these questions, it is necessary to specify beforehand three areas, more specific, which illustrate the impact of the ordinance on the formation of this contract.
Among the new introductory provisions, some are likely to concern more particularly the formation of the guarantee contract. As such, the definition in Article 1106 (2) of the Civil Code of the unilateral contract is particularly adapted to this security. Such a contract presupposes that only one party, the guarantor, commits to the creditor without the creditor being bound by a correlative undertaking. If several provisions give rise to obligations imposed on the creditor, such as the various information obligations or the duty to warn, such requirements do not allow for the conferral of the quality of a synallagmatic contract to the contract of bond. The formula used in article 1106, paragraph 2, states that the contract is unilateral when one person commits himself to another without a “reciprocal” obligation. The presence of this imperative of reciprocity, expressly mentioned in the text, rules out any ambiguity as to the nature of the bonding contract. The requirements mentioned, the information and the warning in particular, are not related to a mutual obligation of the surety, they do not affect the unilateral nature of the suretyship contract.
In the same way, always under the preliminary provisions, the requirement of good faith, stated in article 1104, paragraph 1, of the civil code, is intended to apply to the contract of suretyship. This duty must be respected not only during execution but also, now, at the time of negotiation and formation of the contract (3). Such a reference to good-faith behavior, required by the creditor at the time of the conclusion of the surety bond, was already present in the matter of suretyship, at the initiative of the case law, in particular to sanction the non-respect of the duty to inform , constituting a fraud, or the conclusion of a manifestly disproportionate commitment, which illustrates the bad faith of the creditor. The 2016 reform therefore only confirms a move in favor of a duty of good faith imposed more particularly on credit institutions in favor of unsuspecting sureties (4).
Lastly, as regards the notion of cause, the authors of the reform opted for its abolition, while retaining some of its functions integrated within specific provisions. This deletion does not fundamentally affect the bonding contract, the very presence of the concept being previously disputed (5). The new Article 1162 of the Civil Code thus provides, in accordance with the subjective approach of the case, that the contract “can not derogate from public order either by its stipulations or by its purpose”, a hypothesis which remains very marginal from that is taken into account the only relationship between the creditor and the surety.
Beyond these three specific areas, the study of the new provisions of the civil code relating to the formation of the contract makes it possible to make a double statement. On the one hand, clarification is provided by the order of 10 February 2016 on the requirement of transparency imposed on the creditor in favor of the sureties. On the other hand, uncertainties are punctually created by provisions of general scope that relate more particularly to the formation of the surety bond.
1. The transparency requirement likely to benefit the securities
Several provisions relating to the pre-contractual information obligation and fraud are intended to apply, under certain conditions, to the conclusion of a suretyship contract. The affirmation of such a duality of foundations constitutes a guarantee in accordance with the requirement of transparency, the consequences of which must be assessed.
1.1. The affirmation of a duality of bases intended to guarantee the requirement of transparency
The pre-contractual duty of information completes since 10 February 2016, within the civil code, the provisions relating to fraud.
Before the adoption of the order of 10 February 2016, the theory of fraudulent reluctance, of jurisprudential origin, had had the effect of absorbing the pre-contractual obligation of information in the context of a surety bond, only the obligation during the performance of the contract which has been regulated at various times by the legislator. However, in addition to these information obligations and the sanction of deceptive behavior, a general principle applicable to all contracts is expressly formulated in the new article 1112-1 of the Civil Code. An information duty of a pre-contractual nature is now intended to guarantee, in the name of common law, perfect transparency. This requirement aims to protect the future partner, regardless of any reference to the concept of fraud. Such
This foundation will certainly be able to flourish in the context of bonding contracts, thus satisfying the wishes of the doctrine for which “in view of the importance of the issue of any bond, one may ask whether it is it is not necessary to provide the surety with information on the meaning and extent of his undertaking and the risk involved “(6). In accordance with the new requirements of the 2016 reform, the mere concealment of information will be sufficient to engage the creditor’s civil liability. This new protection of the interests of guarantors is to be imposed because of its character of public order (7).
Recourse to this duty to provide information remains subject to the fulfillment of three conditions provided for by this same provision, designed to adapt to the suretyship contract. It is necessary first of all that the information be deemed to be of “decisive importance for the consent” given by the surety. This determining character, required in paragraph 3 of the aforementioned text, concerns information which has a direct and necessary link with the content of the contract or the quality of the parties. An assessment in concreto will be necessary for the determination of the expected service and the elements that make the deposit unique. It is then necessary for the debtor of the obligation to have knowledge of the information concerned, a condition which should not pose a problem as long as the creditor is a credit institution, because of his status as a knowledgeable professional. The third condition concerns more specifically the creditor of the obligation who “legitimately ignores this information or trusts his co-contractor” according to the terms of paragraph 1. This is singularly the case when the guarantor, as a layman, ignores information deemed to be decisive and engages with a credit institution endowed, as a matter of principle, with a higher degree of knowledge. The latter must inform the guarantor of the consequences of his commitment, including the risks incurred in the event of a default by the principal debtor.
Once these conditions are met, it will be up to the parties concerned to respect the requirements set out in the text, relating to the burden of proof of compliance with this duty to provide information. Article 1112-1, paragraph 4, of the Civil Code specifies the practical arrangements by imposing the respect of two times: the one who claims that information was due to him must first prove that the other party owed it to him. If this evidence is adduced, the debtor of the duty to provide information must then demonstrate that he has provided it. In the case of a surety bond, when the guarantor proves that the information was owed to him, the burden of proving that the information has been provided lies with the creditor. As a precaution, it will be up to him to preconstitute the proof that the information has been delivered, whatever the means and the medium used, as long as they prove to be durable.
The conclusion of a suretyship contract is rightly regarded as a context particularly favorable to fraudulent tactics (8), the fraud constituting a foundation punctually invoked by sureties. The case-law of both the courts of the merits and the Court of Cassation testifies to the diversity of the hypotheses encountered with regard to a suretyship contract. The terms used by the authors when adopting the order of February 10, 2016 require that a double precision be provided when applying this basis for a surety bond. In the first place, this defect of consent could and may still take the form of a lie which concerns the real situation of the principal debtor, particularly when a creditor has claimed that the surety incurs no risk while the current account guarantees was already debtor. Similarly, no longer lies but a real concealment has been questioning the effectiveness of the suretyship contract. In the absence of a specific basis, the Court of Cassation had initially relied on the obligation to contract in good faith to punish creditors, most often credit institutions, who had not knowingly informed the surety of the seriously compromised situation of the principal debtor. Such a concealment of information, though due, was thus one of the manifestations, of jurisprudential origin, of the dolosive reticence.
This decisive character of the maneuvers, at the origin of the commitment of the guarantor, was previously required by the case law. Such may have been the case, in a punctually repeated formula, when “fails to fulfill its obligation to contract in good faith and thereby commits a fraud by reluctance the bank, knowing that the situation of its debtor is irremediably compromised or at least heavily overburdened, fails to bring this information to the attention of the surety, thereby encouraging him to engage “(9). The fraud was therefore established, linked to decisive maneuvers, because the guarantor had not been alerted to the delicate financial situation of the principal debtor. Such a character is now essential when applying the provisions of the Common Law of Obligations. The ordinance enshrines fraudulent reluctance as a protective basis for the interests of guarantors in article 1137, paragraph 2, of the Civil Code: “It also constitutes a fraud intentional concealment by one of the contractors of information of which he knows the character determining for the other party “. This
“Intentional concealment”, of a fraudulent nature, must be sanctioned by the nullity of the contract, since the proven reluctance, attributable to the creditor, has had the effect of misleading the surety to induce him to engage.
Secondly, the order clarifies the determination of the author of the fraud. It is traditional that the maneuvers result essentially from the behavior of the creditor, not of the debtor who insisted on securing the surety. However, the Court of Cassation dismissed the claims made on the basis of the fraud of the principal debtor. One judgment (10) was the occasion to expressly recall that the fraud could be invoked as a cause of nullity of the contract of suretyship only “in the case where the maneuvers emanate from one of the contracting parties”. The rigor of such reasoning has certainly been preserved during the reform of contract law: under the terms of Article 1137, paragraph 1, of the Civil Code, fraud is the “for” a contractor to obtain the consent of the other. In the case of a surety bond, it proves impossible for a surety to obtain the annulment of his undertaking, which would be linked to the maneuvers committed by the debtor. Such rigor has been called into question by certain authors (11) for whom the role and presence of the principal debtor must not be neglected, in the name of not only the guarantee contract, but also the triangular transaction which supposes that this presence and the interests of the principal debtor, without being limited to the parties to the surety bond.
Some nuances have however been made, in line with previous case law (12). According to the new Article 1138 of the Civil Code, the fraud may not only emanate from a representative, business manager, the agent, the strongman of the contractor, but also the “third party connivance”. In the case of a suretyship contract, the latter hypothesis presupposes complicity between the creditor and the debtor in order for a surety to engage in a situation which is manifestly unfavorable to him. Recourse to the concept of “third party connivance” is therefore welcome, but with a limited scope since it supposes that a complicity between the principal debtor and the creditor is noted. In such circumstances, the bond of the surety may be annulled by bringing an action against the only creditor, the action against the third party accomplice only having a pecuniary interest, for the purpose of obtaining compensation for the injury suffered.
Conversely, in the absence of such circumstances, it will be shown that the creditor had informed the surety, in accordance with the new requirements resulting from the reform in particular, and in the absence of fraudulent collusion with the debtor principal, the fraudulent behavior of the latter will not affect the effectiveness of the bond. The authors of the order therefore, unlike the particular case of violence (13) and in the extension of the earlier right, excluded any possibility for a surety to invoke the fraud that emanated from the single debtor. If such a rigor favors the effectiveness of the security interest and the interests of the creditor in good faith who should not suffer the effects of the cancellation of a contract, it can only prove to be excessively unfavorable to the precautions, victims of the behavior of that party. which is usually at the origin of their commitment. In the current state of positive law, the fraudulent behavior of the only debtor who has induced the bond to commit itself can still not be punished.
1.2. Consequences of a duality of foundations to guarantee the requirement of transparency
The diversity of foundations now made available to sureties will certainly contribute to some confusion (14), directly linked to the delicate articulation between the two newly codified transparency requirements in the Civil Code, but also to their combination with the duty to caution.
The adoption of a new pre-contractual duty of information imposes a potentially delicate articulation of this foundation with fraud. What text should be invoked by the surety when it disputes the creditor’s behavior, more specifically the non-disclosure of elements likely to modify his consent? The order expressly referred to elements of distinction, previously held by the case-law, between the breach of the pre-contractual duty of information and the fraudulent reluctance (15).
The decisive element lies in the intentional character of the fraudulent concealment, which singles out the fraudulent reticence. In accordance with the requirements of article 1137, paragraph 2, of the Civil Code, recourse to deceit is indeed possible when the surety provides proof of the intention, for the creditor, to conceal an important element of the contract. Conversely, the lack of information implies a simple negligence on the part of the debtor of this duty and is independent of the fraud. In other words, it does not belong to the guarantor, who wishes to punish the creditor for lack of pre-contractual information, to demonstrate an intention to deceive on the part of the credit institution.
The distinction between the two bases is of interest since the penalties for failure to comply are considered. The lack of information provided may be sufficient for the behavior of a creditor to be challenged, only if the surety requests the implementation of the civil liability of the latter for non-compliance with the requirements of Article 1112-1 of the civil code. But if the guarantor wishes not only to engage this civil liability, but also to obtain the cancellation of the contract, Article 1112-1, paragraph 5, of the Civil Code provides for the need to invoke a defect of consent, in particular the fraudulent behavior of the counterparty. In the latter case, the sanction imposed – the nullity of the surety bond – is legitimately delegated to the fraudulent reluctance (16). It will be up to the guarantors to invoke the appropriate legal basis depending on the sanction sought: either the sole implementation of the creditor’s civil liability, conditioned by the lack of pre-contractual information, or the condemnation of the other party to the same liability and the pronouncement of the cancellation of the contract, the second hypothesis which will most certainly be privileged by the sureties who wish to be released from any commitment.
The parties to a bonding contract will also be confronted with a new articulation between the two requirements of transparency studied, now integrated into the civil code, and the duty to warn. As regards, first of all, the links between the latter and the sanction for fraudulent behavior, the adoption of the contract law reform should not modify the solutions previously adopted. The duty to warn, of jurisprudential origin, has the particularity of being charged to creditors, essentially credit institutions, for the benefit of only the cautions described as uninformed. If the qualification of the notion of “caution money” is always difficult to grasp (17), it remains decisive for the implementation of the duty to warn. Conversely, the fraudulent reluctance can, in principle, be invoked by any surety, regardless of its quality. However, the possibility for a guarantor to obtain the cancellation of a guarantee contract for fraud, is also exceptional, this guarantor being best placed to know the financial situation of the principal debtor (18). As before the entry into force of the reform, it is therefore up to the guarantors, essentially uninformed, to opt for one of two bases depending on the objective pursued, the cancellation for fraud of the commitment or the Obtaining damages for lack of warning.
With regard to, then, the pre-contractual duty of information, will its introduction have the effect of absorbing litigation relating to the duty of care? On the contrary, will the specificities of the latter justify its maintenance and guarantee its autonomy? Similar elements between these two foundations will make it possible to argue for a negative answer to this second interrogation.
The conditions of implementation set out in the new Article 1112-1 of the Civil Code correspond, for the most part, to those imposed when the duty to warn is used. On the one hand, the information provided is of an identical nature. The warning requires the transmission of customized items, tailored to the recipients concerned, based in particular on its degree of competence and experience. The pre-contractual duty of information presupposes the provision of elements equally necessary for the decision-making of the partner (19), legitimately ignored by the latter, in particular according to the quality of the parties. On the other hand, the degree of intensity of the information or warning is obviously similar. It is for the creditor, in accordance with the requirements of the reform, to inform the contracting party of the decisive elements of the agreed act, encouraging him not to conclude (20). Similarly, in the name of the duty to warn, particularly because of the dangerous nature of the surety bond, the creditor must also alert the surety of the negative consequences of the agreed contract, by encouraging him, if need be, not to conclude (21). It must be inferred that the introduction of a new duty of information gives sureties a new legal basis that is particularly close to the duty to warn. The Court of Cassation will have the task of specifying the modalities of articulation and complementarity between these two duties, except if one, the duty of information of legal origin, supplants the other, the requirement of warning. of jurisprudential origin, in applications made before the courts. Such an evolution will certainly simplify the determination of the nature of the civil liability incurred by creditors. The non-contractual liability of the debtor for the duty to provide information is legally more appropriate than the contractual nature, which is wrongly preferred by the Court of Cassation in the event of default.
2. Uncertainties of the reform likely to affect the bonding contract
Among the various legal bases available to sureties for challenging the effectiveness or extent of their engagement, the provisions on consent and the concept of an adhesion contract have recently been incorporated in the Civil Code and are proving to be a source of information. uncertainties.
2.1. Uncertainties regarding changes in the defects of consent
Two innovations, pattern error and abuse of dependency abuse, are likely to be invoked in court by sureties.
The suretyship contract has features that imply that the cases of errors likely to be solicited by the surety are limited. As a unilateral contract, there can only be an error on the promised benefit, which is an exceptionally successful basis, and not on the characteristics of a counter-benefit, since, as a matter of principle, the guarantor does not expect anything in return. A dispute arose as to whether the surety could invoke a particular case of error on the grounds provided for in Article 1135 of the Civil Code: the error on the solvency of the debtor, which necessarily occurred when the contract was concluded and not later (22). The Court of Cassation (23) considered that the surety could obtain the annulment of his undertaking when it was shown that this solvency was the tacit condition determining his commitment. In this case, the creditor could not ignore the irreparably compromised situation of the debtor company. If the very principle of such a tacit condition, considered sufficient, has been punctually reaffirmed (24), it no longer conforms to the option chosen by the authors of the order of 10 February 2016.
The first paragraph of Article 1135 of the Civil Code provides that an error on a simple ground can not constitute a ground for invalidity, in particular where the guarantor merely invokes the insolvency of the principal debtor. This paragraph states, however, in fine, that this same ground may constitute a cause of nullity of the contract, since the parties have made “expressly” a determining element of their consent. A formalism specific to this vice of consent, now imposed by the reform irrespective of the agreed contract, precludes the flexibility provided by the case-law in the matter of a surety bond, which tolerates the only tacit condition.
If it is legitimate for a surety to accept a commitment only if, on the day of the conclusion of the contract, the debtor is solvent, the application of this provision, which supposes that it is indicated expressly that the solvency the debtor is a decisive reason for its commitment, can only be delicate for several reasons. In the first place, the circumstances inherent in the conclusion of a suretyship contract are often characterized by an imbalance between the parties, because of the preponderance of the credit institution on the bond. It is therefore likely that such circumstances will enable the creditor to oppose the conclusion of an express stipulation. Secondly, expressly requiring that the solvency of the principal obligor constitutes a condition of the undertaking of the surety may only be a source of suspicion for the creditor (25), all the more so in the event of close relations between the surety and the principal debtor. In the absence of specific bail law provisions, it will be for the Court of Cassation to adapt its case-law and take into account the new formal requirement. The respect of the terms of the text should require a reversal of jurisprudence and therefore remove any reference to the notion of implied condition. If such a turnaround were favored, it could have the corresponding effect of ruling out any usefulness for the sureties to invoke the error on the debtor’s solvency as the basis for the cancellation of their undertaking. Another option, likely to be adopted by the Court of Cassation, would be to opt, as in other areas of the law of suretyship, for a counter-legem reasoning and to maintain the simple tacit condition, more in keeping with the particularities of the security interest. studied.
In the same way as the error, the violence is punctually invoked before the courts, but seldom retained to cancel a contract of guarantee. The provisions incorporated in the Civil Code in 2016 envisage a variety of assumptions in Articles 1140 and following of the Civil Code, whether physical or moral violence, which may emanate, contrary to fraud (26), the other party but also from a third party, the principal debtor or any other third party (27). The Court of Cassation has held only exceptionally such a basis for a surety bond, especially when the economic constraint, at the origin of the violence, was invoked. The moral violence could thus not result from ceaseless calls from a banker, linked to a legitimate reason, in this case to finalize a bonding contract to guarantee a Wackford Squeers competition granted to a company whose manager was the son of the deposit (28). This same vice of consent was dismissed when threats were made against a leader, so that he suppressed a financial aid on which depended the survival of his company, since there was no evidence of psychological or other “psychological pressure”. nature to impress upon a reasonable person “(29). For the sake of illustration also, the uncertainty results from the sovereign discretion of the judges of the merits, in particular to consider that a suretyship contract must be canceled (30) or, conversely, executed (31) then that moral violence was invoked by a manager engaged as a surety under the threat of a collective action of his company.
Contrary to this jurisprudential rigor, sureties could potentially benefit from a new provision resulting from the reform of contract law: the principle of violence resulting from an abuse of dependence. Under the new section 1143, “there is also violence where a party, abusing the state of dependence in which his co-contractor finds himself, obtains an undertaking from him that he would not have subscribed in the absence such a constraint and derives a manifestly excessive advantage “. Such expressly stated criteria – the specific relations between the parties, specifically the “state of dependence” of whatever nature (32), as well as the “manifestly excessive advantage” – were already used to challenge the scope or effectiveness of the suretyship contract on other grounds such as lack of warning and disproportion, and may be invoked to potentially obtain the nullity of the contract.