THE COURT, at the public hearing of 16 January 2002

Given that, according to the judgement under Appeal (Lyons, 6 November 1998), (1) the Banque Populaire de Bourgogne granted various types of financing to Loiseau Mécanique, a corporation, (“Loiseau”); (2) in order to ensure the continuation of working capital and overdraft facilities, Sofiber, now called Exel Industries, the majority shareholder, provided the Bank with a Comfort Letter, valid until 30 September 1993; (3) on 23 September 1993, the bank notified Loiseau that it was no longer prepared to continue the facilities which had been granted for an indefinite term, which would now end in 30 days’ time as regarded the commercial discounting and other receivables facilities, and in 60 days’ time as regarded the other facilities; (4) Sofiber was informed of this by the Bank on the same day; (5) Loiseau having gone into receivership, the Banque Populaire de Bourgogne brought an action against Sofiber for the payment of the sums owed by the former, referring to the commitment made through the Comfort Letter;

As regards the first ground, taken in its two limbs :

Given that Sofiber criticises the judgement below for ordering it to pay the amount of FF 1.3 million to the Banque Populaire de Bourgogne, whilst, according to the ground:

(1) a company’s undertaking to “ do everything necessary” to ensure that one of its subsidiaries “has sufficient working capital to meet its commitments” constitutes an obligation of means, not of result, the Court of Appeal has breached articles 1134 and 1147 of the Civil Code;

(2) since any guarantee given by a joint-stock company’s Chairman of the Board regarding commitments of third parties, in particular a subsidiary, should first be authorised by the Board, the Court of Appeal has based itself on invalid grounds, in breach of articles 455 of the new Code of Civil Procedure, 1134 and 1147 of the Civil Code, and 98 of the law of 24 July 1966, by deducing from the existence of such an authorisation that the guarantee given by the Chairman should be interpreted as an obligation of result and not of means;

But given that, having held that the letter being litigated upon set out Sofiber’s firm commitment to do everything necessary vis à vis the Banque de Bourgogne to ensure that Loiseau had sufficient working capital to enable it to carry out its commitments as regards the working capital and overdraft facilities, from which facts it deduced that the former was undertaking an obligation of result, the Court of Appeal, which did not base its decision on the existence of an authorisation by the Board, could hold that the signatory of the letter had guaranteed to repay the creditor if the borrower defaulted; it follows that the ground is not founded in any of its limbs;

And as regards the second ground, taken in its two limbs :

Given that Sofiber criticises the judgement below in the same way, whilst, according to the ground;

(1) the termination of a facility granted by a bank does not, except in exceptional circumstances, make the repayment of that loan due, but rather acts as the starting point of the contractual period at the end of which repayment becomes due, and the Court of Appeal has thus breached article 60 of the law of 24 January 1984 by claiming that the loans granted by the Banque Populaire de Bourgogne to Loiseau became due on the day that the notice of termination was served;

(2) having held that Sofiber’s guarantee expired on 30 September 1993, and that by its letter of 23 September 1993, the bank notified Loiseau that the loans previously granted would end in 30 days’ time as regards the commercial discount and other receivables facilities and in 60 days’ time for the other facilities, the Court of Appeal has failed to draw conclusions from its own findings, and has breached article 1134 of the Civil Code, by finding that the loans granted to Loiseau had fallen due before the expiry of the guarantee given by Sofiber;

But given, on one hand, that the judgement does not accelerate the facilities to the date on which they were terminated;

Given, on the other hand, that by holding that (1) the issuing by the Banque Populaire de Bourgogne of a notice of termination of the facilities granted to Sofiber and (2) its calling on the guarantee before the expiry of term made it impossible for the signatory of the letter to raise as against the Bank the expiry of its commitment, the Court of Appeal, which emphasised the fact that the principal debtor’s debt existed before the expiry date of the guarantee, has applied the terms of the contract;

Inadmissible in its first limb, the ground lacks legal basis in the rest;

FOR THESE REASONS

DISMISSES the application for review.

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