Personal guarantees between commercial law and consumer protection: French report in XIXth International Congress on Comparative Law 2014

From the 1980s, to protect sureties deemed to be weakest and/or the most exposed to the dangers of suretyships, French law became more specialised. Alongside the common law set down in the Civil Code, rules were added to other codes or uncoded laws were passed specific to suretyships that secure corporate debt ; suretyships taken out by a natural person to secure a consumer or property loan granted to a consumer ; suretyships signed between a "natural person surety" and a "professional creditor", regardless of the purpose of the secured debt. But the interaction between on the one hand, common law and specific suretyship legislation, and on the other, the numerous special rules, has not been sufficiently taken into account in the successive sector-based reforms. French law on suretyships has become complex, inaccessible, incomprehensible, incoherent and unpredictable. Besides it has tended to cloak the function of guarantees, which is the payment of creditors, and has favoured the protection of guarantors and their relations, even when the guarantee is consented for professional purposes, since the notion of consumer-guarantor is unknown to French law and that the principal legal protection criterion lies in the capacity of the "natural person" guarantor. So French law on personal guarantees does not achieve a correct balance between the requirements of business life and that of consumer protection. It is now leaning clearly towards the latter to such an extent that it is compromising the efficiency of all personal guarantees. Therefore, a reform must be performed to put security and freedom back into the core of French personal guarantee law. It would be desirable that be set down in the Civil Code, on the one hand, rules common to all personal guarantees and, on the other hand, groups of special rules, some based on their accessoriness, reinforced, independent or indemnity-based, others based on the capacity of the guarantor (consumer-guarantor or acting for professional purposes)