Guarantees and mergers

The guarantor's commitment may be affected by the merger of the creditor company.

The extent of the guarantor's commitment

When applying for a bank loan, the bank may ask its future co-contractor for additional guarantees.

One of the guarantees is formalised by a act of guarantee. This is a contract under which a guarantor undertakes to pay the creditor's debt in the event of default by the principal debtor.

Under article 2292 of the French Civil Code, "A guarantee may secure one or more present or future, definite or determinable obligations..

It is therefore essential that the guarantor is aware of and understands the extent of his commitment to the creditor.

For example, in the case of a credit facility, the Cour de cassation has ruled that the "credit facility" is a "credit agreement". the possible nature of such payments". implied that "This credit facility could only take on the character of a loan once the guarantee had been called in. (Cass. 1st civ., 28 Sept. 2004, no. 03-10.810).

Thus, the guarantor's obligation to guarantee a claim can only arise after the claim has been determined.

This is an aspect that can be of crucial importance when the creditor company is merged.

The impact of the merger with the creditor company

According to article 2294 of the Civil Code :

"The guarantee must be express.

It may not be extended beyond the limits within which it was contracted.

It follows from these provisions that the guarantor may not be required to guarantee a higher claim than that agreed in the guarantee.

In addition, the guarantor cannot be forced to change creditors.

However, when it comes to debt collection, one creditor often assigns its debt to another with the associated guarantees.

Above all, in a merger, one company becomes part of another, with the result that the legal entity of the absorbed company disappears.

In response to legislative developments, in particular the bond reform in 2021However, the guarantor does not have to suffer from this change of creditor, which may lead to the company's being forced to sell its shares.termination of its commitment in certain cases.

The Commercial Chamber of the Cour de cassation ruled that :

" It follows from article 2015, now 2292, of the Civil Code and article L. 236-3 of the Commercial Code that in the event of a merger of companies, where one company is taken over by another, the obligation of a guarantor who has undertaken to guarantee the debts of the absorbed company is maintained in favour of the absorbing company for debts arising after the merger only if the guarantor expressly undertakes to guarantee them". (Cass. com., 2 June 2021, no. 19-11.313).

As a result, the guarantor will not be obliged to guarantee a claim if the creditor changes, unless it has expressly agreed to do so.

This is why many creditors introduce clauses transferring the guarantee in the event of an assignment of the principal claim, a situation for which a specialised legal assistance can be essential.