The overdraft authorization given for a bond

The overdraft authorization given for a bond

The authorization of overdraft granted abusively to obtain the guarantee of the leaders

The authorization of overdraft granted abusively to obtain the guarantee of the leaders

1 °) On the successive granting of several credits to a company and the subscription of guarantee commitments

A bank had successively granted several credits to a company. The last credit was an overdraft authorization for a maximum amount of 158,000 euros and a duration of one month. He had not been reimbursed when he was due. A few days earlier, the manager of the company and his companion had issued joint guarantees of the company for 189 600 euros and this, for a period of 13 months.

The commercial court pronounced the judicial reorganization of the company, recovery converted into judicial liquidation the same year. The bank assigned the two sureties in payment of the sum of 176,348.37 euros.

2 °) The arguments supported by the parties before the Court of Appeal

Court of Appeal

In support of their appeal, they criticized the bank for abusively supporting the company by the financial assistance they had been guaranteed. Notwithstanding the provisions of Article L. 650-1 of the Commercial Code, they charged the bank with having committed fraud to their detriment, by granting the company for a purpose other than to maintain its activity, a global credit of 328 500 euros over a period of one year, she was not able to repay, which they could not ignore, the bank that was aware of its financial results and ways to interpret them.

They argued that the loans were fraudulent in that they were not aimed at redressing society whose situation was irretrievably compromised, but that they tended to secure guarantees on the assets of the guarantor and his surrogate.

The bank replied by reminding that the liability of creditors pursuant to Article L. 650-1 because of the assistance granted could be committed only exceptionally, especially in case of fraud and the failure of the company had had for only because of a totally unfavorable economic situation which had led to a fall in its turnover without a corresponding fall in expenses.

3) on the responsibility of the bank


The Court of Appeal held that the purpose of the overdraft authorization was to enable the bank to obtain the security of the manager and his partner for an amount corresponding to the debit balance of the account and the amount of a previous loan. 20,500 euros.

This authorization of discovery by the bank, in full knowledge of the desperate economic situation of the company, could not have any favorable impact on its activity and its durability and only had the effect of delaying its declaration of cessation of payments.

It takes into account these circumstances, a fraudulent character, insofar as it was the counterpart to obtain the commitment of sureties. The bank, by acting solely for the purpose of obtaining personal security, has broken the equality of the company’s creditors for its benefit.

If the bank had not granted the last credit, that is to say, the overdraft authorization, the sureties would not have had to make a personal commitment, it was therefore ordered to pay them damages in an amount equal to the amounts claimed.

Article L. 650-1 cited above establishes a principle, that of the irresponsibility of creditors. Liability for fraudulent contests involves the intention to harm the banker. The banker wanted the ruin of the debtor: he, for example, continued his relations with the company in bad situation to clear the debit of his account.

The pursuit of the banker’s competitions in order to obtain a security guarantee is not enough to prove a fault

The pursuit of the banker

It must also be established that the creditor was fully aware of the irreparably compromised situation of the enterprise and that, from this fraudulent behavior, there has been a prejudice to the creditors, which presupposes a worsening of the asset shortfall of the company. company fraudulently supported.

The Court of Appeal used the article L. 650-1 referred to above to discharge bonds, thus allowing them not to be placed on the only legal ground which was concerned here, namely that of the nullity possible of the obligations of the sureties for fraudulent reluctance of the bank or the responsibility of the latter for failure to fulfill its obligation to contract in good faith or warning the sureties on the difficulties facing the company that the latter were “invited” to guarantee.