Clarification of the scope of a bank’s duty to warn loan guarantors

March 22nd, 2016

A March 22, 2016 judgment of the Court of Cassation involved a corporate officer who had personally guaranteed the obligations of a company in relation to a leasing agreement it had entered into.

Following the company’s default, the lessor commenced legal proceedings against the guarantor to claim performance of the execution. The guarantor then counterclaimed and sought damages against the lessor, arguing that they had failed to comply fully with their duty to warn him.

The Court of Appeal rejected his claim and considered that the officer could not validly be treated as an uninformed, unexperienced guarantor since he had had acted as a manager of the company since its formation and that, as such, he could not reasonably argue that he lacked the requisite information to apprehend the exact nature of his commitments under the lease guarantee.

The Court of Appeal’s decision was overturned by the Court of Cassation, which ruled that the position occupied by the guarantor in the company could not be the sole factor to be considered by a Court to assess whether or not a guarantor could be deemed as informed (“caution avertie”). [Additional information about this case should be added]

March 22, 2016 |  Banking Law