Articles 2290 and 2302 of the Civil Code: Total Awards Against Non-Jointly Liable Guarantors Capped at the Principal Debt (Cass. com., 1 April 2026, No. 23-23.758, Published in the Bulletin)

French Supreme Court (Cour de cassation), Commercial, Financial and Economic Chamber, 1 April 2026, No. 23-23.758, Published in the Bulletin. Previous decision: Paris Court of Appeal, Pôle 5, ch. 6, 25 October 2023, No. 22/13848

What Is the Case Behind This Judgment?

A €200,000 Loan, Two Guarantors, a Compulsory Liquidation

The story begins in September 2015. The company Théâtre Saint Germain sought financing from CIC Iberbanco (since renamed Crédit industriel et commercial) and obtained a loan of €200,000. To secure this loan, the bank required two individuals to stand as guarantors: each committed to €120,000, making a total of €240,000 of guarantees for a loan of €200,000. This mechanism is common in banking practice: the bank seeks to cover not only the capital borrowed, but also the interest and ancillary sums that may be added to it.

A few years later, the company Théâtre Saint Germain was placed into compulsory liquidation (liquidation judiciaire). It could no longer meet its repayments. The bank then turned to the two guarantors and summoned them for payment before the Paris Commercial Court (tribunal de commerce de Paris), which gave its decision on 15 June 2022.

The Procedural History: From the Commercial Court to the French Supreme Court

The case followed a long and winding procedural path, which illustrates well the complexity that disputes over bank suretyships can reach.

What Was the Legal Issue?

The Problematic Calculation: €120,000 + €120,000 = €240,000 for a Debt of €136,879

At first sight, the award made by the Court of Appeal may seem logical: each guarantor had committed to €120,000, and the Court of Appeal ordered each of them to pay that same sum. Yet that is precisely where the error lies.

The Court of Appeal itself had taken care to set the amount still owed by the principal debtor in the liabilities of the collective insolvency proceedings: €136,879.40, plus interest at the rate of 2.85% from 19 May 2021. It had moreover deducted from the bank’s claim certain interest and penalties due for the years 2015, 2016 and 2018. In other words, the bank could legitimately hope to recover, at best, only about €136,879.

Yet, by ordering each guarantor to pay €120,000 without joint liability between them, the Court of Appeal allowed the bank to collect up to €240,000, almost double what it was owed. It is this flagrant internal contradiction that the French Supreme Court came to penalise.

Jointly Liable and Non-Jointly Liable Guarantors: What Is the Difference?

To fully grasp the issue, two fundamental configurations must be distinguished where there are multiple guarantors.

In this case, the Court of Appeal had expressly found that the two guarantors were not jointly liable with one another. It should therefore have drawn all the consequences as to the amount of the sums awarded. It did not, and that is what led to the quashing.

What Solution Did the French Supreme Court Adopt?

Articles 2290 and 2302 of the Civil Code: The Statutory Basis of the Decision

The French Supreme Court bases its decision on the combination of two articles of the Civil Code, in their wording prior to the reform of security law carried out by Ordinance No. 2021-1192 of 15 September 2021.

The first, Article 2290, lays down the fundamental principle that a suretyship is accessory: a suretyship cannot exceed what is owed by the debtor, nor be entered into on more onerous terms. This is the so-called “accessory principle”: the guarantee cannot be heavier than the debt guaranteed.

The second, Article 2302, deals specifically with the situation where several persons have stood as guarantors for the same debtor for the same debt. It states that each of them is bound for the whole debt, which constitutes the regime of joint liability between co-guarantors, but this must be read in combination with the accessory principle.

The Court’s Reasoning: A Combination of Provisions Serving the Guarantors

The French Supreme Court builds its reasoning methodically and in a particularly instructive way. It combines the two provisions to draw out a general principle applicable to all configurations of co-suretyship without joint liability.

The syllogism is as follows: on the one hand, a suretyship cannot exceed the debtor’s debt (Art. 2290); on the other hand, where several guarantors are involved, the sums awarded against them must be determined in proportion to their respective commitments. The combination of these two rules necessarily implies that the total of the sums awarded cannot cross the ceiling of the principal debt.

What is remarkable in this judgment is the final clarification provided by the Court: the rule applies “whether or not the guarantors are jointly liable towards the principal debtor.” This means that even guarantors who are jointly liable towards the bank, but not with one another, cannot be ordered to pay a total exceeding the principal debt. Joint liability with the debtor changes nothing about the limit on the total of the sums awarded.

This clarification is important because it closes off a potential ambiguity: some might have argued that guarantors jointly liable towards the creditor could each be ordered to pay up to their individual ceiling without regard to the total. The French Supreme Court clearly says no.

What Is the Practical Significance of This Judgment?

What Happens After the 2021 Reform of Security Law?

It is important to place this judgment in its normative context. The French Supreme Court here applies Articles 2290 and 2302 of the Civil Code in their wording prior to Ordinance No. 2021-1192 of 15 September 2021. That ordinance carried out a complete overhaul of security law, one of the most important reforms of civil law since the Napoleonic Code.

In the case discussed, since the suretyships were entered into in September 2015, it is indeed the old law that applies. But the question arises: does the solution reached by the French Supreme Court also hold under the new law resulting from the 2021 reform?

The answer is probably yes. The new Civil Code still enshrines the accessory principle of suretyship (now in Article 2299) and maintains similar rules on co-guarantors. The principle that the total of the sums awarded against co-guarantors cannot exceed the principal debt flows from a fundamental legal logic that transcends the precise wording of the provisions. It would indeed be inconceivable, in any coherent legal system, for a creditor to recover more than what it is owed.

What This Changes for Guarantors in Practice

This judgment, published in the Bulletin (which means that the French Supreme Court recognises it as having normative value and intends it to serve as a reference), has important practical implications for everyone who has signed a bank suretyship deed.

Another aspect of the decision deserves mention: the quashing does not automatically entail the annulment of all the provisions of the contested judgment. The French Supreme Court took care to specify that the order requiring one of the guarantors to indemnify the other pursuant to a settlement agreement subsequently concluded between them is not called into question. That agreement, distinct from the original suretyships, has its own legal life and is not affected by the quashing concerning the amounts awarded under the suretyships.

This illustrates an important rule of procedural law: the quashing is partial, and only the provisions of the judgment that are necessarily dependent on the quashed head are carried away. Autonomous provisions, relating to other legal questions, remain valid.

The bank, ordered to pay the costs and to pay €3,000 to the successful guarantor under Article 700 of the Code of Civil Procedure, ultimately bears the consequences of the excessive award it had sought to obtain. This is a lesson that banks would do well to remember when drafting their summonses and calculating their claims.

Conclusion

The judgment of 1 April 2026 handed down by the Commercial Chamber of the French Supreme Court is a leading decision that forcefully recalls a fundamental rule of suretyship law: the bank cannot receive more than it is owed. Obvious as this rule may seem, its disregard by the Paris Court of Appeal nearly cost the two guarantors sued more than €103,000 in addition.

By publishing this judgment in the Bulletin, the French Supreme Court sends a clear signal to the lower courts: where several guarantors who are not jointly liable with one another are summoned for payment, the judge must necessarily verify that the total of the sums awarded does not exceed the principal debt, calculated precisely in the liabilities of the collective insolvency proceedings. It is not enough to order each guarantor to pay up to their individual commitment ceiling without checking that result against the reality of what is owed.

For individuals and company directors who have signed bank suretyship deeds, this decision is a valuable weapon. If your bank is pursuing you for an amount which, when combined with what it claims from other co-guarantors, exceeds what the principal debtor actually owes it, you now have a recognised and published ground of cassation. Turning to a lawyer specialising in banking law is, in these situations, not only useful but often decisive.

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