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A person has signed a joint guarantee deed to Crédit Agricole, to whose rights came a Common Debt Fund, a loan granted to a company.
This company has been defective, the securitization company as the management company of the common fund, then assigned in payment the surety, who availed himself of the nullity of his commitment.
An exception of nullity can be opposed only to check the request for execution of a legal act which has not yet been executed. In this case, the surety bond was not yet executed on the date the surety raised the exception of nullity.
France Securitization cannot oppose the partial execution of the contract to prevent the exception raised by relying on the fact that it has fulfilled its annual obligation to inform the guarantor, while the various obligations of information put to the load of the professional creditor are only legal obligations sanctioned by a simple forfeiture of the right to the accessories of the claim and not the counterpart of the obligation of the surety. Also the deposit was admissible in its exception of nullity.
The creditor considers that the Court of Appeal has violated articles 1304 of the Civil Code and L.313-22 of the Monetary and Financial Code.
He submits that the plea of nullity can only be raised in order to frustrate the request for execution of a legal act which has not yet been executed.
But the Court of Cassation dismissed this appeal by considering that the various obligations placed on the professional creditor are only legal obligations sanctioned by the forfeiture of the right to the accessories of the claim and not the counterpart of the obligation of the surety. The Court of Appeal rightly deduced that at the time when it invoked the nullity of its commitment, the surety contract had not yet been executed by the only issue of the annual information which was legally due to him. so that the objection of nullity was admissible.
The annual information delivered to the guarantor does not constitute an act of execution of the bond rendering inadmissible the exception of nullity of this guarantee by the surety.
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