The annual obligation to inform guarantors (cautions), historically codified in Article L. 313-22 of the Code monetaire et financier (CMF) (in its then applicable version), is a cornerstone of the protection of individual guarantors. For credit institutions, compliance with this obligation is a condition for preserving their right to interest: in the event of a proven breach, the sanction is the forfeiture of the right to interest (decheance du droit aux interets) at the contractual rate.
Given the substantial volume of annual mailings, case law has long sought a balance between the protection of the guarantor and the feasibility of proof for the bank. However, a major ruling by the Court of Cassation, published in the bulletin on 18 June 2025 (No. 23-14.713), drastically reinforces the bank’s evidentiary burden by requiring individualized traceability of the information.
I. General principles of proof of dispatch
The information to the guarantor is considered a legal fact, proof of which may be established by any means. It is for the credit institution to prove that it has effectively implemented the information.
In practice, the annual dispatch of information is a fact. Exact proof of receipt of the letter by the guarantor concerned is generally not required of the bank, given the large number of letters to be sent each year. Nevertheless, the bank must always produce the copy of the information letter specifically addressed to the guarantor.
Historically, to establish proof of dispatch, banks commonly used bailiff’s reports (proces-verbaux de constat d’huissier de justice, or commissaire de justice) attesting to the verification of the reality of the annual bulk mailings. Sometimes, the mere production of copies of the information letters was sufficient to create a presumption of performance of the obligation, even though the mere production of the copy was not sufficient to establish proof of their dispatch.
This practice of bulk dispatch reports has just been called into question by the ruling of 18 June 2025 (No. 23-14.713) regarding its evidentiary value.
II. The insufficiency of a global dispatch report
The ruling of the Commercial Chamber of 18 June 2025 (No. 23-14.713) arose from a dispute between Mr. [B] and Banque populaire rives de Paris. The latter had granted a loan (in the amount of 45,000 EUR, according to the context) secured by Mr. [B]’s guarantee commitment dated 10 November 2017. Following the judicial liquidation of the principal debtor, the bank summoned the guarantor.
Mr. [B] contested his condemnation, arguing a breach by the bank of the annual information obligation (Article L. 313-22 CMF, then applicable) and seeking the forfeiture of interest.
The contested decision
The Court of Appeal of Paris, in a ruling rendered on 1 February 2023, had rejected the claim for forfeiture of interest. The lower court judges had found that the bank had produced the information letters addressed to Mr. [B] and had justified their dispatch by producing bailiff’s reports dated notably 14 March 2018 and 8 March 2019. The court of appeal had inferred that these elements proved “sufficiently the reality of the dispatch of the information to the guarantors” and, consequently, compliance with the obligation.
The rule laid down by the Court of Cassation
The Court of Cassation carried out a partial quashing of the ruling, holding that the court of appeal failed to provide a legal basis for its decision with regard to Article L. 313-22 of the CMF, then applicable.
The Court established that, in order to reject the claim for forfeiture of interest brought by the guarantor, the judges were required to “verify whether the guarantor’s name appeared in the dispatch listings of the information letters”.
In this case, the failure by the court of appeal to investigate the presence of Mr. [B]’s name in the dispatch listings (referred to in the bulk dispatch reports dated 14 March 2018 and 8 March 2019) led to the quashing of the ruling. If the guarantor’s name is missing from this dispatch listing inspected by the judicial officer, this is sufficient to “render less plausible the proof of dispatch to that particular guarantor”.
The case was referred to a different panel of the Court of Appeal of Paris.
III. Practical consequences: the imperative of individualized traceability
This ruling of 18 June 2025 (No. 23-14.713) is decisive. The solution conforms to current case law requiring that the guarantor’s name appear on the dispatch listing of letters inspected by the judicial officer.
To ensure proof of compliance with the annual information obligation and avoid the sanction of forfeiture of interest, credit institutions must now ensure:
- The production of a copy of the information letter addressed to the guarantor.
- The production of the bailiff’s report (proces-verbal de constat) by the judicial officer attesting to the bulk mailings.
- And above all, that the dispatch listing, inspected and certified by the judicial officer, explicitly and verifiably contains the name of the guarantor being pursued.
In sum, proof of dispatch, even facilitated by massive and controlled mailing procedures, must be capable of being individualized and reliably linked to the guarantor concerned to be considered sufficient by the lower court judges.
