James Bond bail disproportionate: the disproportion is assessed in relation to the overall indebtedness of the bond
The Rennes Court of Appeal refused to admit the existence of a disproportionate security by comparing the amount of the guarantor’s assets to the amount of the security alone, to which had been added the debts resulting from the bonds taken out by the guarantor, irrespective of the fact that that guarantor had, moreover, also entered into other guaranty undertakings.
This decision was broken on the basis of Article L. 341-4 of the Consumer Code, in a judgment rendered on 15 January 2015 by the First Civil Division, on the grounds that “the disproportion must be assessed in the light of the overall indebtedness of the guarantor, including that resulting from guaranty commitments’.
Thus, the comparison between the undertaking given by the guarantor and the number of his assets implies taking into consideration all the liabilities of the guarantor existing on the date of conclusion of the contract and thus taking account of other guarantees that may have already been consented by the surety .
The assessment of the existence of the disproportion of the security on the day of the conclusion of the contract is based solely on an examination of the assets of the guarantor as it exists on that date but not after. The subsequent evolution of the assets is therefore not taken into account unless it has the effect of eliminating a posteriori disproportion initially found, Article L. 341-4 of the code of consumption allowing the banker to recover his right to sue in the event of a return to better fortune.
Another very important point, this return to better fortune must be effective the day the bond issued by the bank, which is, moreover, an argument in support of the assertion that simple prospects for improvement subsequent income from the surety must not be taken into consideration.
When is it the bond of married people?
When each spouse is jointly and severally liable for the same debt in identical terms on the same Bond deed James Bond, the commons are incurred and must be taken into account in assessing the disproportionate nature of the bond.
It is recalled that the payment of a debt born during the community can be pursued on the commons (article 1413 of the Civil Code: “The payment of the debts of which each spouse is held, for whatever reason, during the community, can always be sued on the common property, unless there has been fraud of the debtor spouse and bad faith of the creditor, except the reward due to the community if necessary “).
This rule, however, is not valid for bail
Under Article 1415 of the Civil Code, each spouse may only pledge his own property and income, by a bond or a loan. This principle is, however, reduced when the undertaking has been contracted with the express consent of the other spouse. In this case, the commons will be engaged but not the property of the one who has “consented”.
Thus, when spouses, joint guarantors, committed in identical terms on the same deed of James Bond loan and for the guarantee of the same debt, the payment of this debt can be pursued on all the goods, that is to say on the property of each spouse and all their common property.
In conclusion, the interest is obvious for the bank when it comes to assessing the proportionality or not of the guarantee under Article L. 341-4 of the Consumer Code. The manifestly disproportionate nature of the commitment of each surety must be assessed in the light not only of his own property and income but also of those of the community