{"id":18322,"date":"2026-04-16T14:34:45","date_gmt":"2026-04-16T13:34:45","guid":{"rendered":"https:\/\/solent-avocats.com\/guides\/suretes-garanties\/cautionnement\/"},"modified":"2026-04-16T14:34:47","modified_gmt":"2026-04-16T13:34:47","slug":"surety-bond","status":"publish","type":"page","link":"https:\/\/solent-avocats.com\/en\/guides\/suretes-garanties\/cautionnement\/","title":{"rendered":"Guarantees: personal surety and protection of the guarantor"},"content":{"rendered":"

When a bank requires a personal guarantee before granting a business loan, when a landlord demands a guarantor from a tenant, when a supplier asks a company director to give a personal undertaking for the company's invoices: they are all activating the same mechanism, the surety bond. This personal surety, by which a person undertakes to pay the debt of a third party in the event of default, is both the oldest in French law and the most reformed. L\u2019order no. 2021-1192 of 15 september 2021<\/a> completely overhauled the rules in articles 2288 to 2320 of the Civil Code, putting an end to the pile-up of rules stemming from the Consumer Code and proliferating case law. The result is a law that is clearer, but still demanding - and careless guarantors are still exposed to this.<\/p>\n

Definition and characteristics: an ancillary personal surety<\/h2>\n

Article 2288 of the Civil Code now defines suretyship as a contract by which \u00aba surety undertakes towards the creditor to pay the debtor's debt in the event of the latter's default\u00bb. The formula, rewritten by the 2021 reform, concentrates the whole economy of the surety. Three fundamental features flow from it and condition the entire system.<\/p>\n

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Article 2288 of the Civil Code<\/div>\n

\u00abA surety bond is a contract under which a guarantor undertakes to pay the debtor's debt to the creditor in the event of the latter's default.
Guarantees may be given at the request of the principal debtor or without his order, and even without his knowledge.\u00bb<\/p>\n<\/p><\/div>\n

A surety bond is first and foremost a personal safety<\/strong>, This radically distinguishes it from collateral securities such as mortgages or pledges. The guarantor does not assign an asset to the guarantee: he or she pledges his or her entire assets. If the guarantor is called upon to pay, the creditor can seize any of the guarantor's assets - salary, bank account, vehicle, second home - within the limits set by the rules protecting the debtor. This universality of the general pledge gives surety bonds their strength, and explains their popularity with banks: there is no need to discuss the value or location of an asset, the pledge relates to the person.<\/p>\n

The surety bond is then a accessory contract<\/strong>. A guarantor does not guarantee a theoretical debt: he or she guarantees the obligation arising from a principal contract between an identified creditor and debtor. This accessory nature has decisive consequences. If the principal obligation is null and void, the guarantee falls with it. If the principal debt is extinguished by payment, set-off or prescription, the guarantee is also extinguished. If the creditor grants the debtor a deferment of maturity, the guarantor benefits. Above all, the guarantor may raise against the creditor suing him all the defences - including those personal to the debtor - that the principal contract allows to be raised. The 2021 reform enshrined this rule, putting an end to hesitant case law that had previously reserved personal defences to the principal debtor alone.<\/p>\n

Finally, surety bonds are unilateral contract<\/strong>, This is usually free of charge, at least on the guarantor's side. Only the guarantor makes a commitment; the creditor's only duty towards the guarantor is to provide information and, in some cases, a duty to warn. This asymmetry lies at the heart of surety law: all the case law, and then the 2021 legislation, have endeavoured to rebalance it by imposing strictly sanctioned protective obligations on the creditor.<\/p>\n

Three related securities are clearly distinguishable from surety bonds and must be identified to avoid any confusion. The stand-alone guarantee<\/strong> (art. 2321 C. civ.) is an undertaking to pay on first demand, unrelated to the principal debt; its non-accessory nature makes it much more stringent for the guarantor and explains its use in international commercial relations. The letter of intent<\/strong> (art. 2322 C. civ.) is an undertaking to do or not to do something, often used by a parent company towards the creditors of a subsidiary; its scope depends entirely on how precisely it is drafted. The real security for third parties<\/strong> - What used to be known as \u00abreal surety\u00bb - consists of assigning a specific asset to guarantee the debt of a third party, without any personal commitment: the 2021 reform enshrined its autonomy and removed the ambiguous qualification of \"real surety\".<\/p>\n

Forming a guarantee: writing, endorsement and informed consent<\/h2>\n

The formation of a valid surety bond is subject to strict formalities, which were radically reformed by the Ordinance of 2021. Prior to this reform, the system was split between the Civil Code, the Consumer Code and the Monetary and Financial Code, with different handwritten requirements depending on the status of the parties and extremely severe penalties imposed by the courts. The legislator of 2021 has unified the whole around articles 2297 et seq. of the Civil Code, for a single regime from now on.<\/p>\n

Writing and reference to article 2297<\/h3>\n

Article 2297 of the Civil Code requires a natural person who gives a guarantee to a professional creditor to affix a statement acknowledging the nature and extent of the undertaking, failing which the guarantee will be null and void. The exact wording has now been freed from the rigidity of the past: it is sufficient for the statement to express the guarantor's awareness that he or she undertakes to pay the debt of the debtor if the latter fails to do so, up to a maximum amount in principal and ancillary sums expressed in words and figures.<\/p>\n

The endorsement need no longer be handwritten. Since 2021, it may be affixed electronically, provided that the process used enables the guarantor to be identified and guarantees the integrity of the document. The greater flexibility of the text has put an end to the endless disputes over forgotten commas and incomplete wording which, under the old law, regularly led to the collapse of perfectly executed undertakings.<\/p>\n

The requirement applies only to the surety natural person<\/strong> who is committed to a professional creditor<\/strong>. Guarantees between private individuals or taken out by legal entities must still be in writing. ad probationem<\/em> by article 2294, but without any handwritten mention or sanction of nullity.<\/p>\n

Capacity and power<\/h3>\n

The guarantor must have the capacity to make a commitment and, when married under a community regime, the question of power arises. Article 1415 of the Civil Code remains applicable: a guarantee given by only one spouse does not commit the joint property, unless the other spouse gives his or her express consent. This rule, which is often ignored, allows the spouse who has not signed to safeguard the family home if it has been financed with joint funds. Any surety deed drawn up in a professional context therefore requires a careful examination of the matrimonial property regime and, where applicable, the consent of the spouse.<\/p>\n

The professional creditor's duty to warn<\/h3>\n

In addition to the formalities, since the 2003 law and the case law that clarified it, the professional creditor must, warn<\/strong> the uninformed guarantor against the risk of indebtedness resulting from the granting of credit. This duty is incumbent on the bank whenever it signs a guarantee with a person who does not have the technical qualifications or experience to spontaneously assess the risks - typically the manager's spouse, the mother who guarantees her son or the friend who does a favour. Article 2299 of the Civil Code, which came into being as a result of the reform, enshrines this duty and defines its penalty: damages which are offset against the guaranteed debt, thereby reducing the guarantor's commitment.<\/p>\n

Types of guarantee: simple, joint and several, real, indefinite<\/h2>\n

Suretyship is not a monolithic block: it can be broken down into a number of different forms that substantially alter the way it is governed. Understanding these variants means understanding what the guarantor is really signing - because the choice between simple surety and joint and several surety, in particular, can upset the guarantor's situation in the event of default by the principal debtor.<\/p>\n

Simple and joint surety bonds<\/h3>\n

Le simple surety<\/strong> is the standard form. A simple guarantor benefits from the benefit of discussion<\/strong> (art. 2305 C. civ.): the guarantor may require the creditor to seize and sell the principal debtor's assets before taking action against the guarantor. When several guarantors guarantee the same debt, each also benefits from the divisional profit<\/strong> (art. 2306 C. civ.): the creditor can only claim his share, the debt being divided per capita between the solvent co-debtors.<\/p>\n

Le joint and several surety<\/strong>, On the other hand, a joint and several guarantee deprives the guarantor of these two benefits. A joint and several guarantor is treated as a co-debtor: the creditor can sue the guarantor for payment from the first incident, without first having to seek enforcement against the principal debtor; and if there are several joint and several guarantors, each is liable for the entire debt. In practice, this form is the standard imposed by banks, which almost always require joint and several liability as a condition of credit. For a full discussion of the differences between the two regimes and their practical effects, see our article on simple or joint surety<\/a> details each mortgage.<\/p>\n

The dividing line between the two regimes is essential for the guarantor. Signing a joint and several guarantee means accepting that the creditor will come knocking at your door without even trying to recover the funds from the principal debtor. For this reason, the wording of article 2297 must expressly recognise the waiver of the benefit of discussion and the benefit of division when joint and several liability is stipulated - otherwise these benefits apply despite the clause to the contrary.<\/p>\n

Definite bond and indefinite bond<\/h3>\n

The bond is defined<\/strong> when it is capped at a specific amount, expressed in words and figures. It is indefinite<\/strong> when it extends to all debts arising or to arise from a current account, a long-term business relationship or evolving financing. Article 2293 of the Civil Code authorises indefinite surety bonds, but also imposes stricter obligations to provide information: the guarantor must be informed annually of the amount of the guaranteed debt and how it is evolving, enabling him or her to assess the growing scale of his or her commitment and, if necessary, to cancel the surety bond for the future.<\/p>\n

Banking practice makes extensive use of this form to guarantee loans to companies, in particular the current account surety<\/a>, The specific features of this type of agreement merit separate development. Managers who guarantee their company's current account must understand that they are committing themselves to an amount which, technically, is not known on the day of signature and which may increase considerably as the loan is used.<\/p>\n

Real security for third parties - ex-real surety bond<\/h3>\n

For a long time, the term \u00abreal surety\u00bb was used in practice to describe the use of an asset to guarantee the debt of another person, without any personal commitment on the part of the guarantor. A parent mortgaged his property to guarantee his child's business loan: was this a surety (with protection for the guarantor) or an autonomous security interest (without protection)? After years of hesitation, the Court of Cassation and then the legislature in 2021 decided in favour of autonomy. Collateral security is now treated as an ordinary collateral security: the grantor commits only the property affected, but loses the benefit of the protective rules of suretyship (notice, disproportion, obligation to provide information). For a detailed analysis of this change, see our article on the real security for third parties<\/a> sets out the practical consequences of this distinction.<\/p>\n

Disproportionality and control of the commitment<\/h2>\n

Imperative rules govern the amount of a guarantor's undertaking, based on a simple principle: a person cannot be required to undertake to pay a debt that is manifestly out of proportion to his or her financial capacity. This requirement, first enshrined in case law and then in the Consumer Code, was incorporated into the Civil Code by the 2021 reform. It is now set out in article 2300.<\/p>\n

The text stipulates that a guarantee given by a natural person to a professional creditor may not be manifestly disproportionate to his or her assets and income - unless, at the time it is called upon, the guarantor is in a position to meet it. The sanction is original: it is no longer the total forfeiture of the undertaking, as under the Consumer Code, but the reduction<\/strong> of the guarantee to the amount that the guarantor was actually able to assume on the day the contract was signed. Legal certainty gains, but the protection remains strong: a guarantor whose declared assets were insufficient when the contract was signed will be able to demand in court that his commitment be reduced to the appropriate level.<\/p>\n

The burden of proof lies with the guarantor. The guarantor must demonstrate disproportionality by establishing the amount of his or her assets and income on the date of the commitment. Banking practice consists of having the guarantor sign a asset information sheet<\/strong> which documents the guarantor's situation and provides the creditor with a valuable line of defence in the event of a subsequent dispute. Warning: false or incomplete information declared by the guarantor in this form partially neutralises the proportionality check, as the creditor is entitled to rely on what the guarantor declares.<\/p>\n

Proportionality checks are one of the most effective ways of defending a guarantor who is called upon to pay. In the event of a dispute, it is often more productive than challenges to the handwritten wording: whereas a formal defect only comes into play once, disproportionality can lead to a substantial and definitive reduction in the undertaking. To gauge the extent of the protective mechanism - which combines a proportionality check, a duty to warn and information obligations - our analysis of the bond protection by category<\/a> summarises the rules applicable to each type of guarantee.<\/p>\n

The creditor's information obligations<\/h2>\n

Creditors who have taken out a guarantee are not free to simply wait until the due date. They must inform the guarantor throughout the life of the contract, on pain of automatic penalties that reduce their claim. These information obligations, which were previously scattered throughout the Consumer Code and the Monetary and Financial Code, have been brought together by the 2021 reform in articles 2302 and 2303 of the Civil Code, applicable to all sureties taken out by an individual against a professional creditor.<\/p>\n

Annual information (article 2302)<\/h3>\n

Before 31 March each year, the professional creditor must inform the individual guarantor of the amount of the principal of the debt, interest and other ancillary costs outstanding at 31 December of the previous year. The creditor must also remind the guarantor of the right to terminate the guarantee if it has been taken out for an indefinite period. Failure to provide this information will result in forfeiture of interest and penalties<\/strong> between the date of the previous information and the date on which the guarantor is actually informed. The penalty is automatic: the court must impose it as soon as it establishes the breach, without having to assess the existence of any prejudice.<\/p>\n

The burden of proof is on the creditor. It is not enough to allege that the information was sent: it must be proven. The Court of Cassation has consistently ruled that a simple copy of a standard letter is not sufficient proof; what is required is a document certifying that the information was actually sent, typically a time-stamped mass deposit slip. In practice, this evidentiary requirement poses a serious problem for banking institutions that guarantee directors for decades: the slightest failure to file entitles them to a substantial reduction in interest.<\/p>\n

Information on the first payment incident (article 2303)<\/h3>\n

In addition to providing annual information, the creditor must notify the guarantor as soon as a outstanding payment incident<\/strong> occurs on the principal debt. The information must be provided within one month of the incident. Once again, the penalty is forfeiture of interest and penalties accrued between the date of the incident and the date of notification. The practical aim is to enable the guarantor to react - either by paying the interest itself to stop the interest escalating, or by preparing to call in his commitment, or by entering into negotiations with the principal debtor.<\/p>\n

The cumulative effect of sanctions<\/h3>\n

Combined, these sanctions have a considerable effect on old debts. A guarantor summoned several years after the first incident, on a debt that should have been the subject of annual information and then information on an incident, may see the debt reduced by half or more if the bank is unable to prove that it has fulfilled its obligations. This is one of the first points that any lawyer should check when he or she is seized with payment proceedings against a guarantor: even before tackling the issue of disproportion or formal defects, it is important to look at the records and reconstruct the chronology of the information.<\/p>\n

Proceedings, defences and remedies of the guarantor<\/h2>\n

When the principal debtor fails to pay, the creditor may sue the guarantor. But these proceedings come up against a series of defences - some inherited from the accessory nature of the guarantee, others drawn from the general law of obligations - that the guarantor must be aware of if he is not to passively suffer the proceedings.<\/p>\n

The terms of the lawsuit<\/h3>\n

The creditor can only sue the guarantor if the debt is due<\/strong>. In practice, this basic condition raises a number of questions: can the guarantor invoke a period of grace granted to the debtor by the court? Can the guarantor invoke an unfair acceleration clause? Does the guarantor benefit from the moratorium obtained by the debtor under a conciliation or safeguard procedure? The answer is yes in all these cases: the accessory rule requires the guarantor to benefit from changes to the debt that are favourable to the debtor, provided that they are not strictly personal to the debtor. The 2021 reform also specified that the guarantor may raise defences that belong to the debtor, including personal defences, without restriction other than legal incapacity.<\/p>\n

Background defences<\/h3>\n

The guarantor has several options. First, it can challenge the formal validity<\/strong> of its undertaking: lack of a written document, defective wording, absence of informed consent. She may then invoke the manifest disproportionality<\/strong> of its commitment and obtain its reduction. It may invoke the failure to comply with the duty to warn<\/strong> if they were uninformed and the bank did not alert them to the risk. It can take advantage of the lack of information<\/strong> annual or incidental payments to obtain the forfeiture of interest. Above all, it can contest the principal debt itself, as the extinction of the principal contract entails the extinction of the guarantee.<\/p>\n

In addition to these substantive defences, the individual guarantor is also protected by the subsistence<\/strong>. The creditor's action for payment may not deprive the guarantor of a sum equivalent to the revenu de solidarit\u00e9 active. This rule, which applies automatically, limits the practical effectiveness of proceedings against a modest guarantor, even when his or her undertaking is legally unassailable.<\/p>\n

Recourse by the guarantor who has paid<\/h3>\n

Once the creditor has been repaid, the guarantor has two remedies against the principal debtor. The personal action<\/strong>, This recourse, based on payment, enables the guarantor to claim repayment of the sums paid, statutory interest which accrues by operation of law, and the costs incurred. This remedy may extend to damages for separate loss, but it has one disadvantage: the guarantor becomes an unsecured creditor of the debtor, with no special guarantee. In the event of the debtor's insolvency, this remedy is futile.<\/p>\n

Le subrogatory action<\/strong> corrects this weakness. By subrogation, the guarantor takes the place of the original creditor in all his rights, including the securities that guaranteed the debt - mortgages, pledges, other sureties. It is this recourse that allows, for example, a guarantor who has paid a debt secured by a mortgage to have the property assigned to him up to the amount he has paid. There are two limits: the subrogatory recourse cannot exceed the amount paid and it follows the prescription of the initial claim.<\/p>\n

In the case of several guarantors, recourse between joint sponsors<\/strong> is subject to a special rule: it is divided. The guarantor who has paid in full may claim from each of the other guarantors his or her share, calculated on a per capita basis or, if the commitments were different, on a pro rata basis. If one of the guarantors is insolvent, its share is divided between the solvent guarantors.<\/p>\n

Termination of the guarantee<\/h2>\n

Guarantees are extinguished in a number of ways, some of which are specific to their accessory nature and others to their particular nature. The rules, codified in articles 2313 to 2320 of the Civil Code, have been reorganised by the reform, but their substance has remained stable. For a complete overview, see our detailed article on\u2019extinction of the guarantee<\/a> examines each mode and its consequences.<\/p>\n

Extinction by accessory route<\/strong> arises from the extinction of the principal obligation. Payment by the debtor, set-off, confusion, remission of debt, prescription: all these causes extinguish the guarantee. The reasoning is mechanical - if there is no longer a debt to guarantee, there is nothing left to guarantee.<\/p>\n

Extinction by main road<\/strong> arises from the contract of guarantee itself, independently of the fate of the principal debt. The guarantor may be released by his own payment. The guarantor may terminate the guarantee for an indefinite period, for the future, by simple notification; this option is particularly useful in the case of a current account guarantee, where it enables the bleeding to be stopped if the loan goes astray. It may invoke the discharge of item 2314<\/strong> of the Civil Code - a powerful mechanism that discharges the guarantor when the creditor, through his own fault, has allowed the loss of a right whose subrogation could have benefited him. A banker who waives a mortgage, allows a registration to lapse, or fails to declare his claim in collective proceedings, exposes his guarantor to this discharge.<\/p>\n

The death of the guarantor also entails a complication of its own. A guarantee is not automatically extinguished by death: the heirs are liable for the debt incurred during the guarantor's lifetime. On the other hand, in the case of an open-ended guarantee or a successive performance guarantee (current account), the heirs are only liable for debts incurred prior to the guarantor's death - case law has established this rule to prevent heirs from being held indefinitely liable for a commitment to which they have not consented.<\/p>\n

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Focus - The debtor's insolvency and the guarantor's fate<\/div>\n

The opening of collective proceedings against the principal debtor does not automatically release the guarantor. On the contrary, it is precisely at this point that the creditor turns against the guarantor. But the rule is nuanced. In the event of backup<\/strong>, If the guarantor is a natural person, he or she benefits from a protective regime: the guarantor can invoke all the measures of the safeguard plan (deadlines, discounts), which delays the debt becoming payable against him or her. In the event of turnaround<\/strong> and liquidation<\/strong>, In such cases, the creditor may take immediate action against the guarantor. In all cases, the creditor must declare his claim against the debtor within the legal time limits, on pain of losing his security - which may justify, in certain cases, the application of the discharge provided for in article 2314. The cross-issues of sureties and insolvency proceedings are among the most frequent disputes in this area.<\/p>\n<\/p><\/div>\n

Handling a guarantee case requires a careful reading of the contract, discussions with the creditor, the guarantor's financial situation on the day the contract was signed and compliance with information obligations. A properly defended guarantor rarely obtains the outright nullity of his undertaking, but very often obtains a substantial reduction in the amount owed. Conversely, the drafting of a guarantee on the creditor's side requires methodical rigour: every omitted formality is an open door to litigation. To situate surety bonds in the overall architecture of guarantees, consult our complete guide to securities and guarantees<\/a>, which describes the interactions with security interests in real property and other personal security interests.<\/p>\n

At Solent Avocats, we work with both guarantors sued for payment and creditors faced with a debtor's default. Whether the issue at stake is contesting a statement, claiming disproportionality, implementing a discharge or, on the contrary, drafting a solid undertaking in the face of litigation, Solent Avocats can help.\u2019assistance from a security lawyer<\/a> enables you to identify the legal levers and measure their consequences before taking action.<\/p>\n

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