When a creditor agrees to lend, deliver on credit, or wait to be paid, it takes a risk. The debtor’s insolvency – even when honest – can strike at any moment: insolvency proceedings, asset devaluation, protracted litigation. The law of securities (droit des suretes) is the technical response to this risk. It organises, around the creditor-debtor relationship, an arsenal of mechanisms improving the chances of payment when the principal obligation is no longer honoured voluntarily.
This panoramic guide covers French security law as reformed by Ordonnance no. 2021-1192 of 15 September 2021, effective 1 January 2022. It does not detail each mechanism – our dedicated guides on mortgage, surety, pledge, retention of title, right of retention and priority claims handle that. It maps the landscape: where securities come from, how they classify, which to choose, and why the 2021 reform profoundly reshuffled the cards.
A security is not a guarantee
In common parlance, “security” and “guarantee” are interchangeable. In French law, they are not. A guarantee (garantie), broadly speaking, designates any technique improving a creditor’s position: action paulienne, action oblique, termination clause, penalty clause, joint liability, delegation. Tools that protect the claim without specifically affecting a property or engaging a second debtor. A security (surete), by contrast, is a special guarantee organised by Book IV of the Code civil, creating either a right over property (real security) or a second debtor’s engagement (personal security).
This distinction commands the applicable regime: publicity, third-party opposability, ranking, treatment in insolvency, enforcement methods. A guarantee not qualifying as a security offers only a contractual advantage, with no preferential right in reorganisation or liquidation. An authentic security confers priority, sometimes a right of pursuit, sometimes exclusivity removing the beneficiary from creditor competition entirely.
The general pledge of creditors: the baseline and its fragility
The starting point of security law appears in Articles 2284 and 2285 of the Code civil: any person who has personally obligated themselves must perform on all their movable and immovable property, present and future. The debtor’s property is the common pledge of creditors, and the proceeds are distributed by contribution – unless there exist legitimate causes of preference.
Three ideas found the entire law of securities. First, every creditor has, by the mere existence of their claim, a right over the debtor’s entire estate. Second, this right is collective: in competition, proceeds divide proportionally (pari passu). Third, legitimate causes of preference – precisely, securities – break this equality.
The general pledge is thus the minimum right but, in practice, an extremely fragile one. Against structural insolvency, collective proceedings, or competition from better-armed creditors, the unsecured creditor recovers crumbs. Taking a security is not a contractual luxury. For any serious creditor, it is a basic precaution.
Personal and real securities: the two great families
Book IV of the Code civil organises securities into two families.
Personal securities adjoin a second debtor to the principal debtor. Article 2287-1 lists three codified forms: suretyship (cautionnement), autonomous guarantee (garantie autonome), and letter of intent (lettre d’intention). Their common point: the creditor acquires a right of pursuit against a person, not over a specific property. Efficacy depends on the guarantor’s solvency.
Real securities (Article 2323): “the allocation of a property or set of properties, present or future, to the preferential or exclusive payment of the creditor.” The creditor holds a right over a property: if the debtor fails to pay, the creditor sells the property and is paid by priority, or sometimes has it attributed.
Secondary classifications structure practice: movable or immovable; with or without dispossession; conventional, legal or judicial; conferring preference, pursuit or exclusivity.
Personal securities: the surety and its alternatives
Suretyship (Articles 2288 et seq.) is by far the most used. The 2021 reform simplified the definition, consolidated the proportionality requirement, and codified the professional creditor’s duty to warn. See our surety guide.
The autonomous guarantee (Article 2321): The guarantor commits to pay on first demand, without link to the underlying debt. Unlike the surety, the guarantor cannot raise defences from the guaranteed obligation (except fraud or manifest abuse). The queen of international commerce and public procurement.
The letter of intent (Article 2322): An engagement “to do or not to do, aimed at supporting a debtor in performing their obligation.” Its scope depends entirely on drafting.
Real securities over movables
Pledge (gage, Articles 2333-2354): Affects movable corporeal property. Since 2021, unified regime: writing required ad validitatem, opposability via dispossession or registration on the movable securities register. Pacte commissoire (attribution clause) is lawful except for residential property.
Pledge over intangibles (nantissement, Articles 2355-2366): Mirror of the gage for incorporeal movables. Defined as “the allocation, in guarantee of an obligation, of an incorporeal movable or set thereof.” The pledge over receivables is particularly effective: immediate opposability to third parties, and notification to the assigned debtor crystallises the creditor’s exclusive right. Special pledges exist for: business fund, shares, bank accounts, financial instruments, life insurance. See our pledge guide.
Movable priorities (privileges mobiliers): Legitimate causes of preference conferred by law. See our priority claims guide.
Retention of title (Articles 2367-2372): The seller retains ownership until full payment. Opposable without publicity in commercial matters. The creditor can vindicate the property in insolvency proceedings within a strict three-month deadline. See our retention of title guide.
Fiducie-surete (Articles 2372-1 to 2372-5): Transfers property to a trust estate managed by a fiduciary for the creditor’s benefit. Assets leave the settlor’s estate entirely – the only security offering complete insulation. Reserved for large-scale operations due to cost and formalism.
Real securities over immovables
Conventional mortgage (Articles 2385-2474): “The allocation of an immovable in guarantee of an obligation without dispossession.” Constitution by notarial deed on pain of nullity. Land registry publication required for opposability. Rank determined by order of registration. Confers a right of preference and a right of pursuit. Maximum registration duration: 50 years. See our mortgage guide.
Special legal mortgages: The 2021 reform converted all former special immovable privileges (vendor, lender, co-partitioner, co-ownership syndicate) into special legal mortgages requiring registration. Rank now follows registration date – ending the former retroactivity.
Judicial mortgage: Authorised by the enforcement judge as a conservatory measure pending an enforceable title.
The right of retention
The right of retention (Article 2286) occupies a place apart. The holder of another’s property may refuse restitution until paid. It is neither personal nor real in the strict sense, but acts as pressure. Its power is universal opposability – it binds all, including insolvency practitioners – despite conferring no preference on sale proceeds and no right of pursuit. It is the “silent super-priority.” See our right of retention guide.
When to consult a practitioner
Three contexts justify immediate consultation. Structuring financing: choosing between surety, mortgage, pledge, retention of title – each has strengths and weaknesses depending on the asset, the debtor profile, and the insolvency risk. Defending against enforcement: a surety called in, a mortgage being enforced, a retention-of-title claim in insolvency – the defensive arsenal is rich but technically demanding. Insolvency interface: ranking disputes, proof of claims, right-of-retention confrontations, fiducie-surete challenges.
Solent Avocats acts in Marseille and throughout France, alongside creditors structuring their security packages and debtors or sureties defending against enforcement. See our banking and financial law practice page.