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Case:
Cour de Cassation – First Civil Chamber. Judgement 485 Case Benard / Caisse d’Epargne et de Prévoyance Poitou-Charente Application for Review no. 99-17.209
Date:
12 March 2002
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

THE COURT, constituted according to Article 131-6-1 of the Code Code Relating to the Organisation of the Courts, in the presence of……..

[…… ]

Given that (1) by a document dated 12 April 1991, the Caisse d’Epargne etde Prévoyance Poitou-Charente (“CEP”) made a loan to the AssociationChrétienne Internationale (“the Association”), Messieurs Benard,Grunder and Forschle becoming joint and several sureties for the borrower; (2)the Association went into administration, then, on 13 January 1994, into liquidation;(3) after having proved its claim and fruitlessly served notice on the suretiesto pay, CEP brought action for payment against the latter; (3) the judgementunder attack ordered the sureties jointly and severally to pay CEP the amountdue plus interest at the rate set out in the contract from the date upon whichnotice was served;

Regarding the two limbs of the only ground of the subordinate Application forReview, which falls to be decided first, as set out in the pleadings and is annexedto this judgement:

Given that (1), having found that the Association had an activity which employed37 people, the Court of Appeal noted the economic nature of the activity of theAssociation, and, therefore, the existence of an undertaking, the fact that itwas a not-for-profit organisation being irrelevant; (2) therefore, the informationobligation set out in Article 313-22 of the Monetary and Financial Code havingto be observed, even if the guarantee was given by a manager of the undertakingbeing guaranteed who knew exactly the situation, the Court of Appeal has foundedits decision in law; from which it follows that the ground cannot be acceptedin any of its limbs;

But with respect to the single ground of the main Application for Review:

In view of Article 313-22 of the Monetary and Financial Code;

Given that, in order to order the sureties to pay interest at the contractualrate from the date of the service of notice, the Court of Appeal held that theonly sanction set out by the text for a failure to inform is the loss by thelender of the right to claim interest already due calculated at the contractualrate;

Given, however, that the failure to observe the provisions of the text bringsabout the loss of interest at the contractual rate, the sureties being personallyobligated to pay interest at the statutory rate; so that in judging as it didthe Court of Appeal violated the text mentioned above;

And given that , pursuant to Article 627 (2) of the New Code of Civil Procedure,the Court of Cassation may end a case by applying the appropriate legal disposition;

FOR THESE REASONS

REJECTS the subsidiary Application for Review;

QUASHES AND ANNULS the judgement of 3 March 1998 of the Court of Appeal of Bordeaux,but only to the extent that it ordered Benard Grunder and Forschle jointly andseverally to pay to CEP the amount of F 155.532,78 with interest at the contractualrate from 8 May 1994……..

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