Our practice in suretyship law
A suretyship (cautionnement) is a contract by which a person – the surety – undertakes to pay the debt of another if that debtor defaults. It is the most common form of personal security in French law, used to guarantee bank loans, commercial leases, and corporate obligations. The closest English-law equivalent is a guarantee (as distinct from an indemnity), though French suretyship carries its own formality requirements and statutory protections.
Our firm handles these cases daily, both in defence of the surety being pursued and in advising professional creditors who are enforcing the guarantee.
French suretyship law was fundamentally reformed by the Ordinance of 15 September 2021, in force from 1 January 2022. The reform changed the formal requirements, the disproportionality regime, and the creditor’s information obligations. Every case must be analysed under the law applicable on the date the surety agreement was signed.
Disproportionality – Article 2299, French Civil Code
Where a suretyship given by an individual to a professional creditor was, at the time of its conclusion, manifestly disproportionate to the surety’s income and assets, it may be reduced to the amount the surety could have committed to at that date. Before the 2022 reform, the sanction was complete discharge of the surety. Since the reform, it is a proportional reduction. The applicable regime depends on the date of the surety agreement.
| Simple surety | Joint and several surety | |
|---|---|---|
| Benefit of discussion | Yes – creditor must first pursue the principal debtor | No – creditor may pursue the surety directly |
| Benefit of division | Yes – each surety may require the creditor to divide the claim | No – creditor may claim the full amount from one surety |
| Prevalence | Rare in practice | Standard in banking agreements |
You are being sued as surety
The bank has accelerated the loan. The principal debtor has defaulted, entered judicial liquidation, or become insolvent. The creditor is turning to you. You signed a surety agreement, perhaps without fully appreciating the scope of your commitment.
This situation is common. The director who guaranteed the company’s debts, the family member who stood surety for a mortgage, the trader who guaranteed a commercial lease: the profiles differ, but the mechanism is the same. The payment claim arrives, and the sums demanded can reach hundreds of thousands of euros.
Lines of defence
- Challenging the formal validity of the surety agreement: absence or irregularity of the prescribed wording required by Article 2297 of the Civil Code, vitiated consent, error as to the scope of the commitment
- Invoking manifest disproportionality between the commitment and your income and assets at the time of signing (Article 2299, Civil Code)
- Verifying the professional creditor’s compliance with the annual information obligation (Article 2302, Civil Code) and obtaining forfeiture of interest in case of breach
- Raising the principal debtor’s defences against the creditor: nullity of the loan, time-barring of the debt, extinction of the principal obligation
- Challenging the amount claimed: verification of the calculation, interest, penalties, and ancillary charges
- Negotiating a settlement: instalment plan, partial write-off, compromise
Annual information obligation – Articles 2302 and 2303, Civil Code
The professional creditor must, by 31 March each year, notify any individual surety of the outstanding principal and interest. Breach of this obligation results in forfeiture of the interest accrued since the last compliant notification. This defence is particularly effective for long-running suretyships.
The failure to provide annual information is an under-exploited line of defence. The Cour de cassation regularly confirms that this obligation must be complied with until the suretyship expires (Cass. com., 26 November 2025, No. 23-19.203). Breach automatically triggers forfeiture of accrued interest.
You are enforcing a suretyship
You are a professional creditor, a bank, or a commercial landlord. Your debtor has defaulted and you wish to call on the surety. Enforcement requires absolute procedural rigour: a poorly drafted agreement, a missed information obligation, and the surety gains defences that can substantially reduce your recovery.
What we handle
- Pre-enforcement audit of the surety agreement: formal validity, scope of commitment, simple or joint and several
- Verifying compliance with annual information obligations (Article 2302, Civil Code) to secure your position
- Assessing the risk of a disproportionality defence
- Serving formal demand and conducting proceedings before the Judicial Court or Commercial Court
- Managing the surety’s recourse actions after payment: personal recourse and subrogation (Articles 2305 and 2306, Civil Code)
- Coordinating with other security interests: mortgage, pledge, statutory lien
Director-guarantor: a high-risk commitment
The director’s personal guarantee is the most common security demanded by banks when lending to a company. You signed a joint and several surety to guarantee a loan, a credit line, or an overdraft. Your company is now in difficulty. The risk is real: if judicial liquidation is ordered, your personal assets are directly exposed.
Our work for director-guarantors
- Analysing the validity of the surety agreement signed at the time of the company’s incorporation or refinancing
- Verifying the bank’s duty to warn (Article 2301, Civil Code): should the professional creditor have alerted you to the mismatch between the loan and the company’s financial capacity?
- Assessing the disproportionality of your commitment relative to your personal assets at the date of signing
- Defence strategy following the company’s judicial liquidation
- Negotiating with the bank: debt write-off, instalment plan, settlement
- Protecting your primary residence and personal assets
The Cour de cassation confirmed in 2025 that disproportionality is assessed on the surety’s actual assets, not merely on the basis of declarations made to the bank (Cass. com., 26 November 2025, No. 24-17.990).
Frequently asked questions
What should I do if I am sued as surety?
Gather your surety agreement, the loan contract, the bank’s correspondence, and any evidence of your income and assets at the time you signed. Contact a lawyer promptly: procedural deadlines are tight, particularly if you are being pursued under a joint and several suretyship.
Can the bank claim the full debt from a joint and several surety?
In principle, yes. A joint and several surety waives the benefits of discussion and division. The creditor may pursue you directly for the full amount without first pursuing the principal debtor. However, other defences remain available: disproportionality, failure to provide annual information, nullity of the agreement.
Can my suretyship be voided if the bank failed to inform me annually?
Not voided, but the creditor forfeits the right to interest accrued during the period of non-compliance (Article 2303, Civil Code). For a long-running suretyship, this forfeiture can represent very substantial sums.
How long can the bank pursue me as surety?
The limitation period is five years from the date the debt becomes due (Article 2224, Civil Code). This period may be interrupted or suspended in certain circumstances. Do not delay in taking advice.
Can disproportionality release me from my guarantee?
The applicable regime depends on the date of your surety agreement. Before 1 January 2022, manifest disproportionality resulted in complete discharge of the surety (former Article L. 332-1, Consumer Code). Since the reform, it results in a proportional reduction of the commitment (Article 2299, Civil Code).