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The different forms of guarantee

By Yasmine EDDAM18 March 2025

Le surety bond is one of the most widely used personal sureties in our law. It enables a creditor to secure its claim by obtaining an undertaking from a third party to pay the debt if the principal debtor fails to do so. This type of security comes in several varieties, each with its own specific features and advantages. For a broader understanding of personal sureties, including the difference between a surety bond and an independent guaranteeSee our analyses.

I. Single or joint and several guarantee

The distinction between simple and joint and several guarantees concerns the extent of the creditor's rights vis-à-vis the guarantor.

In the simple suretyThe guarantor benefits from the "benefit of discussion". This right allows the guarantor to demand that the creditor first sue the principal debtor before demanding payment. The guarantor can thus say: "Go and seize the debtor's assets first, I will only pay if there is nothing left to recover".

A joint and several guarantee, on the other hand, deprives the guarantor of this benefit. The creditor can take direct action against the guarantor without having to sue the principal debtor. This is the most common form of guarantee in practice, as it increases the effectiveness of the guarantee.

There are three levels of solidarity:

Solidarity between guarantors and with the debtor
Horizontal solidarity (between guarantors only)
Vertical solidarity (between each guarantor and the debtor)

II. Civil or commercial surety bonds

In principle, a surety bond is a civil contract. It becomes a commercial contract according to three criteria.

Commerciality by nature applies to bank guarantees. These commitments are credit transactions, which are commercial in nature.

Commerciality by form concerns the endorsement of a commercial instrument, although case law is now tending to make a better distinction between endorsement and guarantee.

Commerciality by accessory, a new feature of the Order of 15 September 2021, qualifies any guarantee for commercial debts as a commercial transaction. This rule simplifies legal treatment: the main contract and its guarantee come under the same law and the same jurisdiction.

This classification has major consequences: presumption of joint and several liability in commercial matters, jurisdiction of the commercial courts, freedom of proof if all the parties are traders.

III. Contractual, legal or judicial surety

A conventional guarantee is the result of the will of the parties. This is the most common form.

Legal security is required by law in certain situations. For example, article 601 of the Civil Code requires the usufructuary to provide a guarantee to the bare owner. Other cases are covered by the Civil Code and the Commercial Code.

Judicial security is ordered by a judge. Under article 815-6 of the Civil Code, the president of the court may order the undivided co-owner appointed as administrator to provide security.

Despite their different origins, these three forms remain contracts. The law or the courts require the debtor to provide a surety, but they cannot force anyone to become a surety against their will. This is a major difference from legal or judicial sureties.

Specific rules apply to legal and judicial guarantees. The guarantor must be "sufficiently solvent to meet the obligation". If the guarantor loses this solvency after his undertaking, the debtor must provide another guarantor or substitute a "sufficient" real security.

IV. Complex bonding models

Two complex mechanisms add a fourth player to the classic trio (creditor/debtor/guarantor).

Guarantee certification creates a second-degree guarantee. The certifier guarantees the creditor the solvency of the guarantor, not that of the principal debtor. If the guarantor fails to pay, the creditor can turn to the certifier.

The sub-guarantee protects the guarantor himself. The sub-guarantor undertakes to repay the guarantor (not the creditor) what it has paid for the principal debtor. This mechanism reproduces the triangular scheme of surety, but shifts the roles: the surety becomes the "creditor" and the sub-guarantor becomes the "guarantor".

These two techniques differ in their practical use. Certification of surety, an old but little-used technique, is subject to competition from multiple joint and several sureties. Sub-surety, long ignored by the legislature but incorporated into the Civil Code in 2021, is enjoying practical success, particularly when banks act as guarantors for their customers.

The reform of 15 September 2021 modernised the surety bond law. It removed certain outdated provisions and incorporated into the Civil Code rules that had previously appeared in scattered texts, such as the Consumer Code. This change has a dual objective: to ensure legal certainty for creditors while protecting guarantors against excessive commitments.

For the creditor, the choice of form of surety depends on the balance sought between the effectiveness of the guarantee and the ease of obtaining it. A joint and several guarantee offers better protection but may scare off some guarantors. A simple guarantee will be more readily accepted, but will be less effective in the event of the debtor defaulting. For tailored support or an analysis of your commitments, our lawyers specialising in surety bonds are at your disposal.