You signed a suretyship agreement (engagement de caution) to guarantee a loan or a lease, and the creditor is now turning to you for payment? It is essential to know whether this commitment complies with the principle of proportionality. Under French law, a suretyship must not be manifestly excessive relative to the surety’s financial capacity at the time of signing.
Whether your contract was concluded before or after the reform of 1 January 2022, the law protects you against abuses by professional creditors. If the amount claimed is unrealistic in light of your income, your assets and your overall indebtedness, you could obtain a total discharge from your debt or a significant reduction thereof.
Discover in this article the concrete criteria used by judges, the method for calculating this disproportion yourself, and the available remedies to protect your assets.
1. General Principle: The “Disproportionate Suretyship”
For suretyships concluded before 1 January 2022 for the benefit of a professional creditor (bank, professional landlord, supplier, etc.), the protective rule derives from the former Article L. 332-1 of the Consumer Code (formerly Article L. 341-4).
This provision stipulates that a professional creditor may not rely on a suretyship agreement entered into by a natural person if:
- On the date of conclusion of the suretyship, the commitment was “manifestly disproportionate” to the surety’s assets and income;
- and
- On the date when the surety is called upon to pay, the surety’s assets do not allow the surety to meet the full guaranteed obligation.
If both conditions are met, the surety is in principle totally discharged from the commitment (the “all or nothing” sanction for these older suretyships).
Since the ordinance of 15 September 2021, for suretyships concluded from 1 January 2022 onwards, the new applicable rule (Article 2300 of the Civil Code) is different: the sanction is no longer total unenforceability, but a reduction of the commitment to the level that the surety could reasonably assume.
2. At What Date Is Proportionality Assessed?
a) Primary reference date
The “manifestly disproportionate” character is assessed at the date of conclusion of the suretyship:
It must be verified whether, at the time you signed the deed, you were manifestly unable to meet the commitment with your assets and income.
This inability must be obvious to a normally diligent professional (“manifest” disproportion).
b) Second stage: on the day you are pursued
Even if the suretyship was disproportionate at the outset, it remains valid if, at the time the creditor pursues you, your assets enable you to meet the obligation (the concept of “return to better fortune”).
It is then for the creditor to prove that, on the date of the action for payment, you have become sufficiently solvent again.
Conversely, if the suretyship was already disproportionate at signature and remains so on the date of pursuit, you are entirely discharged (and not merely to the extent of your solvency).
3. What Concrete Factors Are Considered in Assessing Proportionality?
a) Your assets and income at the date of signing
All elements of your estate are examined (not only your wages):
Assets:
- Real estate (net value: property value minus outstanding loan principal plus other security interests).
- SCI or company shares, share in undivided property.
- Savings, bank accounts, investments.
- Movable assets of value (less frequently documented in case law).
Income:
- Wages and professional income.
- Rental income and income from movable capital.
- Any other regular income (excluding expense reimbursements which are not “true” income, such as mileage allowances recently excluded).
Overall indebtedness (liabilities):
- All your existing loans (mortgage, consumer, professional, etc.).
- Your other prior suretyship commitments (and sometimes concurrent ones).
- Security interests encumbering your assets (mortgages, pledges), deducting the guaranteed debt to calculate the net value.
b) Matrimonial regime and multiple sureties
If you are married under a community property regime, both your personal assets and community property are taken into account.
If you are married under a separate property regime, only your personal assets and income are considered, adding, where applicable, your share in undivided property (house purchased jointly, etc.).
If there are several sureties, proportionality is assessed separately for each, based on their own assets and income, and not by adding everyone together (except in specific cases of spouses with community property acting as sureties together).
4. How Do Judges Concretely Assess Disproportionality?
The decisions cited in the documentation reveal typical cases:
a) Numerical illustrations
- Suretyship representing the entirety of the estate and three years of income: deemed manifestly disproportionate where the creditor fails to prove that the surety can meet the obligation on the date of the appeal.
- Suretyship of approximately more than one year of very modest income (€15,000 for income leaving €871/month to live on): deemed manifestly disproportionate.
- Suretyship for several hundred thousand euros where the net value of assets plus income was insufficient to cover the commitment: disproportion established.
Conversely, if the overall indebtedness only slightly exceeds the value of the estate, the judges recall that this slight excess is not sufficient: there must be a manifest impossibility of meeting the commitment, and they also require an examination of income.
In summary, disproportion is established when, reasoning on the net value of your estate plus your income that can reasonably be mobilised, the suretyship commitment appears excessive to the point that it is unrealistic to think you could assume it.
5. Who Bears the Burden of Proof?
a) It is for you (the surety) to prove the initial disproportion
The burden of proving the “manifestly disproportionate” character at the date of signing rests on the surety:
You may produce: tax notices, loan statements, amortisation schedules, payslips, property valuations, etc.
b) Then, it is for the creditor to prove a possible “return to better fortune”
Once the initial disproportion is demonstrated, the creditor must prove that, at the time they pursue you, your estate now enables you to meet the obligation.
6. Role of the “Information Form” Completed at the Time of the Suretyship
In practice, banks often require the surety to complete an information form (fiche de renseignements) detailing income, expenses, assets and existing commitments.
a) For the creditor
In the absence of “apparent anomalies,” the creditor is not required to verify the accuracy of the declarations (it may rely on them).
If the form is regular, the surety cannot subsequently claim that their situation was “in reality” less favourable than what they themselves declared.
b) For the surety
The form is one piece of evidence among others, which the judge may combine with other documents, even if it was drawn up a few months before the suretyship (the judge may “update” it in light of other documents).
However, a form signed after the suretyship subscription cannot be taken into account to assess disproportion: the creditor must have made inquiries before the commitment.
c) Where no form was completed
If the creditor did not require a form, it cannot subsequently reproach the surety for remaining silent about prior commitments: the surety “gains freedom of proof” to demonstrate the disproportion.
7. Effects of Established Disproportionality
For suretyships concluded before 1 January 2022:
If the commitment was manifestly disproportionate at signature and your situation still does not allow you to meet the obligation at the time of the appeal, the creditor is totally deprived of the right to enforce the suretyship (total unenforceability / extinction of the security).
This sanction is indivisible: the suretyship is not reduced to a “reasonable” amount; it is set aside entirely.
For suretyships concluded from 1 January 2022 onwards, the new applicable rule (Article 2300 of the Civil Code) provides for a reduction of the commitment, not a total forfeiture: the surety’s obligation is lowered to a level compatible with their assets and income.
8. Practical Method for Assessing Proportionality Yourself
To gain an initial view of the proportionality of your own commitment, you may proceed step by step, placing yourself at the date of signing the suretyship:
- List your net annual income (wages, rental income, other regular income), excluding mere expense reimbursements.
- Assess the net value of your estate (value of assets minus outstanding loan principal secured against those assets).
- List all your debts and other suretyships already given at that date (overall indebtedness).
- Compare the amount of the suretyship commitment with:
- the net value of your estate;
- a reasonable multiple of your annual income.
- Ask yourself: even by liquidating virtually all of your assets and dedicating a significant portion of your income over several years, could you realistically meet this amount?
9. Specific Points of Attention If You Are Challenging Your Suretyship Today
The statute of limitations does not run against you for invoking disproportion: the sanction is unenforceability, not nullity, and you may raise this defence at any time, as long as the creditor seeks to pursue you.
You will need to provide evidence of your situation on the date of signing.
If you completed an information form without apparent anomalies, it will be difficult to claim that your assets and income were lower than what you declared.
Finally, it is always important to distinguish:
- the question of disproportion (legal protection of natural person sureties);
- and other potential grounds (defect of consent, failure to warn, formal irregularities of the deed), which are governed by different legal regimes.
In practice, to determine whether your commitment is proportionate to your income, you must numerically compare the amount of your suretyship to all of your resources and debts at the date of signing, then verify whether a manifest impossibility of meeting the obligation emerges from this analysis.
