The bank del credere, a guarantee mechanism that is often misunderstood, nevertheless represents a powerful legal tool for securing commercial transactions. It is a form of undertaking by which a credit institution guarantees payment of a claim to its beneficiary, usually a seller, in the event of default by the debtor. This type of guarantee, although old-fashioned, retains a certain relevance in an economic environment where controlling credit risk is a major issue. To better understand how it works, it is essential to explore in detail the bank del credere, a little-known but effective guarantee. The purpose of this article is to examine the complex legal nature of this undertaking and its specific features, in order to inform entrepreneurs about the protection it can offer and the situations in which its use, and the support it can provide, are essential. lawyer specialising in enforcement proceduresare a good idea. For concrete examples, you can also read our article on the various applications of the bank del credere in practice.
The controversial legal nature of bank del credere
The legal classification of bank del credere has long been the subject of doctrinal debate. In the absence of a precise legal definition, legal scholars have tried to link it to existing categories of contract, such as credit insurance or surety bonds, before gradually recognising its originality. This uncertainty is not without practical consequences, as the nature of the commitment determines the legal regime applicable to it.
The credit insurance argument and its limitations
Some classic authors have analysed the bank del credere as a form of credit insurance. In this view, the bank plays the role of an insurer guaranteeing the creditor (the insured) against the risk of insolvency of its debtor. The commission received by the bank would then be likened to an insurance premium, and the payment made in the event of default to an indemnity. This argument highlights the random nature of the transaction, where the realisation of the risk (non-payment) triggers the guarantor's obligation.
However, a more modern doctrine has highlighted the fundamental differences between the two mechanisms. On the one hand, insurance is based on a pooling of risks between a large number of insureds, which is not the case with del credere, which is a contractual relationship between two parties. This is not the case with del credere, which is a contractual relationship between two parties. Secondly, del credere is not a stand-alone contract; it is always grafted onto a pre-existing intermediary transaction between the bank and its customer. The credit insurer focuses on the quality of the debtor whose risk he is covering, whereas the del credere banker focuses more on the relationship he has with his own client, the creditor who is the beneficiary of the guarantee. This distinction is important because it brings del credere closer to other signature credit transactions, rather than to insurance products.
Bond analysis and rejection
Another approach has been to equate the bank del credere with a guarantee, on the grounds that in both cases a third party undertakes to pay another person's debt. The bank thus acts as guarantor for the debtor in favour of the creditor. While this analysis may seem relevant, particularly when the del credere takes the form of an aval cambiaire, it has been widely rejected by the majority of legal writers for one decisive reason: the nature of the undertaking.
A surety bond is, by its very nature, an ancillary contract. Its existence and validity depend on the principal obligation it guarantees. In addition, it is normally entered into free of charge. A del credere, on the other hand, is a principal contract, albeit one attached to another transaction. It is concluded for consideration, the bank being remunerated for the service it renders to the creditor, and not to the debtor. The cause of the del credere's commitment does not lie in the principal debtor's debt, but in the business relationship between the bank and its beneficiary customer. Rejecting the characterisation of the guarantee as a suretyship is essential, because it allows the del credere to avoid the strict formalities governing suretyships, in particular the handwritten particulars required by the Civil Code.
Modern approaches: original or indemnity cover
Faced with the limitations of traditional qualifications, modern doctrine tends to recognise del credere as an original guarantee, or "sui generis". It is said to be a creation of commercial practice, devised to meet specific needs for securing payments, outside established frameworks. This view respects the will of the parties and the specific nature of the mechanism, which combines elements of several contracts without merging with any of them. This qualification distinguishes it from stand-alone guaranteesAlthough parallels can be drawn in the area of non-accessory personal sureties.
Another, complementary analysis emphasises the indemnity nature of the del credere undertaking. From this perspective, the del credere clause is a form of aggravation of the bank's contractual liability in the context of its intermediary role. By agreeing to act as del credere, the bank extends its obligations beyond the simple payment service to cover a specific risk: non-payment on the due date by the third party. The event giving rise to the bank's liability is then simply the failure to pay, without the creditor having to prove fault. This approach emphasises the role of the bank as an intermediary that ensures the 'successful completion' of the transaction for its customer.
Distinctive legal characteristics of bank del credere
Beyond the controversies surrounding its nature, the bank del credere has certain characteristic features that enable it to be identified and distinguished from other securities. These characteristics, which have been identified in practice and in legal doctrine, define the legal regime applicable to this atypical form of security.
A main contract combined with an intermediary transaction
The del credere never exists in isolation. It is always grafted onto a pre-existing contract between the bank and its customer, the beneficiary of the guarantee. This underlying transaction is typically an intermediary contract, such as a discounting transaction, a documentary credit or a payment service. The del credere undertaking is an additional obligation that the bank agrees to assume in the context of this relationship. Although it is attached to this first contract, the del credere is itself a principal contract, not an accessory contract. It creates direct and autonomous obligations between the bank and the creditor, the fate of which does not necessarily depend on that of the intermediary contract. This tripartite structure (bank, creditor, debtor) and the duality of the contractual relationships are at the heart of the mechanism.
The del credere guarantee: a subsidiary but not accessory obligation
The del credere banker's obligation is subsidiary, which means that it can only be invoked after the principal debtor has defaulted. The creditor must first try to obtain payment of his claim from his debtor before he can turn to the bank. The claim must be certain, liquid and due for the guarantee to be activated. The parties may contractually define what constitutes insolvency, ranging from a simple delay in payment to legally established insolvency.
However, although the guarantee is subsidiary, it is not accessory. Unlike a guarantor, who can set up against the creditor the defences that the principal debtor could himself invoke (nullity of the debt, etc.), the del credere banker generally cannot. His commitment is independent of the principal debt. Only a fault on the part of the creditor, for example a breach of his own contractual obligations towards the debtor that would justify non-payment, can release the del credere banker. This distinction is fundamental because it offers the beneficiary much greater security than a simple guarantee.
A consensual agreement with no imposed formalities
A bank del credere is a consensual contract, which means that it is validly formed by the mere exchange of the parties' consents, without any particular form being required. No sacramental formula is required. The commitment may be express, but also tacit, resulting from the circumstances of the transaction. This lack of formalism clearly distinguishes it from a surety bond, which requires a written document and specific wording to be valid.
In practice, a written agreement is almost always adopted for reasons of proof. In the case of tacit del credere, proof of the intention of the parties may be provided by any means in commercial matters, in accordance with article L. 110-3 of the French Commercial Code. The receipt of specific remuneration by the bank is often evidence of the existence of a del credere commitment. In the event of a dispute, it is up to the judge to assess the common intention of the parties to qualify the agreement, as the term "del credere" is neither necessary nor sufficient on its own.
Bank del credere: a bilateral contract for valuable consideration
The del credere agreement is a synallagmatic contract, creating reciprocal obligations for both parties. On the one hand, the bank undertakes to guarantee payment, an obligation subject to the debtor's default. On the other, the creditor-beneficiary undertakes to remunerate this service by paying a del credere commission. This commission is generally in addition to the fees set out in the initial intermediation contract. The amount is freely negotiated by the parties.
Case law has clarified that the cause of the bank's undertaking does not lie solely in the receipt of this commission, but more broadly in its personal interest in supporting the flow of business with its customer. Thus, a del credere commitment could be considered valid even in the absence of formally identified remuneration, if this commercial interest is demonstrated. The contract may also impose other obligations on the creditor, such as the provision of specific documents, failure to comply with which could deprive the creditor of the benefit of the guarantee.
The complexity of the legal nature of del credere and the subtleties of its system make sound advice essential when it comes to setting it up. Our firm assists businesses in securing their receivables and implementing payment guarantees. If you would like to analyse the options best suited to your situation, please contact our team of lawyers.
Sources
- Monetary and Financial Code
- Commercial code
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