Any person standing surety for a tenant may specify in the act a period of expiry of his commitment. The lessor thus has a period of time to claim the payment of sums to which it has committed, beyond which he loses the benefit of the deposit. For its part, Article 2254 of the Civil Code states that “the duration of prescription (…) can not (…) be reduced to less than one year”. The question was whether the lapse period could be assimilated to a limitation period, thus being applied for a minimum period of one year.
Bank C. is a joint guarantor to another lessor company for the payment of twelve months of rent that a couple of tenants may owe under a six-year residential lease. The lease is terminated on December 17, 2008 and the bond formalized to perform its obligation by registered letter of April 23, 2009, and assigned in payment by the lessor. The surety refuses indeed to execute, opposing him a clause of his commitment according to which this one “will become obsolete and can not be put in play for any reason whatsoever at the expiry of a period of three months (…) from the effective date of any early termination of the lease contract “. However, the lessor did not call his guarantee within the contractual period. The Court of Appeal, however, condemns the guarantor to pay the sums claimed, claiming that the contractual period is a period of limitation and that pursuant to Article 2254 of the Civil Code, it can not be reduced to less than one year. (Lyon CA of 24.5.12).
The Court of Cassation sweeps the argument: “The bond was based on the agreement of the parties to invoke the non-compliance with the period expressly provided for the implementation of its commitment.” This judgment highlights the importance of the conditions stipulated in the guarantee commitments. Legally formed agreements take the place of law to those who made them.