When a bank demands a personal guarantee before granting a business loan, when a landlord requires a guarantor for a tenant, when a supplier asks the director to commit personally for company invoices: all activate the same mechanism – suretyship (cautionnement). This personal security, by which a person undertakes to pay a third party’s debt in case of default, is both the oldest in French law and the most reformed. Ordonnance no. 2021-1192 of 15 September 2021 entirely overhauled its regime at Articles 2288 to 2320 of the Code civil, ending the accumulation of rules from the Code de la consommation and proliferating case law.
Definition: an accessory personal security
Article 2288 defines suretyship as “the contract by which a surety commits towards the creditor to pay the debtor’s debt in case of the latter’s default.” Three fundamental features follow.
It is a personal security: the surety does not encumber a specific asset but commits their entire estate. If called to pay, the creditor may seize any asset – salary, bank account, vehicle, secondary residence.
It is accessory: the surety guarantees an obligation from an identified principal contract. If the principal obligation is null, the suretyship falls. If the principal debt is extinguished by payment, set-off or limitation, the suretyship is extinguished. The surety may oppose to the creditor all defences – including personal ones to the debtor – that the principal contract allows (position clarified by the 2021 reform).
It is unilateral: only the surety commits; the creditor merely owes information duties and, in certain cases, a duty to warn. This asymmetry drives all the protective rules.
Formation: writing, statement and informed consent
The 2021 reform unified formation requirements around Articles 2297 et seq. Article 2297 requires a natural person surety committing to a professional creditor to append, on pain of nullity, a statement acknowledging the character and extent of their commitment, expressing awareness of paying the debtor’s debt if they fail, within a limit expressed in words and figures. The statement need no longer be handwritten – electronic means are permitted. The requirement applies only to natural person sureties committing to professional creditors.
For married sureties under a community regime: Article 1415 Code civil remains applicable – a suretyship by one spouse alone does not encumber community property absent express consent of the other.
The professional creditor must warn the unsophisticated surety against the indebtedness risk. Article 2299 (2021) codified this duty with a sanction of damages set off against the guaranteed debt.
Types: simple, joint and several, real, unlimited
Simple suretyship: the surety benefits from the benefit of discussion (Article 2305: require the creditor to seize the debtor’s assets first) and the benefit of division (Article 2306: where multiple sureties, each responds only for their share).
Joint and several suretyship (cautionnement solidaire): deprives the surety of both benefits. The creditor may pursue the surety from the first incident without prior action against the debtor. This is the norm imposed by banks.
Unlimited suretyship (cautionnement indefini): extends to all debts present and future from a running account or continuing relationship. Subject to reinforced annual information obligations.
Real security for another (sûreté réelle pour autrui): the 2021 reform definitively separated this from suretyship. A person encumbers a specific asset to guarantee another’s debt without personal commitment. They lose the protective rules of suretyship but limit exposure to the encumbered asset alone.
Proportionality
Article 2300 (2021) provides that a natural person’s suretyship to a professional creditor cannot be manifestly disproportionate to their assets and income – unless, when called, they can meet it. The sanction is no longer total discharge but reduction to the amount the surety could effectively bear at the date of commitment. The burden of proof lies on the surety; the bank defends with the patrimonial information form signed at inception.
Creditor’s information obligations
Annual information (Article 2302): Before 31 March each year, the professional creditor must inform the natural person surety of the principal, interest and accessories outstanding at 31 December, and remind them of termination rights. Failure: automatic forfeiture of interest and penalties accrued between the last information and actual notification. The bank must prove dispatch, not merely allege it.
First payment incident (Article 2303): The creditor must notify the surety within one month of any unregularised incident. Same sanction of interest forfeiture.
Combined over years of debt, these sanctions can halve or more the amount owed. This is the first point any practitioner checks when defending a surety.
Pursuit, defences and remedies
The creditor may pursue the surety only if the debt is due and payable. The surety benefits from grace periods, moratoria, and modifications favourable to the debtor.
Available defences: formal validity challenge (defective statement); manifest disproportion (reduction); breach of duty to warn (damages as set-off); failure of information obligations (interest forfeiture); and challenge to the principal debt itself (extinction of principal = extinction of suretyship).
After paying, the surety has a personal action (Article 2308: reimbursement of principal, interest and costs) and a subrogatory action (Article 2309: stepping into the creditor’s rights, including securities held against the debtor).
Solent Avocats defends sureties called to pay and assists creditors in structuring enforceable suretyship packages. See our securities guide and banking law guide.