The surety surety must not pay too quickly

Before paying, he must wait to be sued by the lender and notify the borrower in advance, the main debtor, recalls the Court of Cassation, citing the civil code.

The surety surety must in fact give the borrower time to put forward his arguments, in particular if he disputes the enforceability of his debt. He should not prevent him from defending himself by paying too quickly.

In principle, the surety surety who pays in place of a borrower can then claim repayment from him in turn because it is vested with the rights that the lender had. But if he pays too quickly a debt that was not yet due, he deprives the borrower of his recourse, explain the judges. Finding himself then vested with the rights that the debtor had, he in turn finds himself deprived of any recourse.

In this case, a surety body had guaranteed the bank loan of an individual who was purchasing a home. The repayments having known difficulties, the bank had ended up pronouncing the "forfeiture of the term", that is to say that it had demanded the total and immediate repayment, as envisaged by the contract.

The borrower could have contested but the surety, requested, had paid immediately, without precautions, without being sued by the bank and without giving the borrower time to defend himself.

This borrower could therefore no longer assert his arguments to contest the break with the banker. He lost any chance of obtaining a favorable judicial agreement or decision. Under these conditions, justice rejected any request for reimbursement presented by the surety.

(Cass. Civil 1, 20.2.2019, W 17-27.963).