The ruling delivered by the Court of Cassation on 26 November 2025 (Appeal No. 23-19.203) is rich in lessons. While the ruling is noteworthy for its clarification on the annual information obligation that persists even after the closure of a current account, it also contains an important procedural clarification, addressed in paragraphs 8 and 9 of the reasoning, concerning the procedural classification of the defence based on the forfeiture of interest for failure to inform.
This point concerns the cross-appeal (pourvoi incident) brought by the bank and targets the order against Mr [N] to pay the sum of €36,000 under the 2016 suretyship commitment, with interest at the statutory rate from 18 February 2019, resulting from the forfeiture of the right to interest pronounced by the Court of Appeal of Caen.
Com. 26 novembre 2025, n° 23-19.203, F-B, Publié au Bulletin
The Procedural Debate: Claim vs. Defence on the Merits
The dispute raised by the bank before the Court of Cassation rested on a question of form: Mr [N], the surety, had not explicitly requested the forfeiture of the bank’s right to interest in the operative part (dispositif — the section of the submissions listing the claims and demands) of his appeal submissions.
The bank criticised the Court of Appeal of Caen (ruling of 30 March 2023) for having exceeded its powers by pronouncing this forfeiture. The bank’s argument was as follows:
- The Court of Appeal must only rule on the claims (prétentions) set out in the operative part of the latest submissions of the applicant.
- In his appeal submissions, Mr [N] did not request the forfeiture of interest, but only that the interest paid by the principal debtor be deducted from the principal claim.
- By pronouncing the forfeiture of interest for the suretyship of 21 July 2016, the Court of Appeal would have violated Articles 4 and 954 of the Code of Civil Procedure.
What a “Defence on the Merits” Is and Why the Classification Matters
A defence on the merits (moyen de défense au fond) seeks to have the adversary’s claim rejected as unfounded, following an examination on the merits of the law, and is notably exempt from the limitation constraints that affect claims, according to civil case law citing Articles 64 and 71 of the Code of Civil Procedure (Cass. com., 4 November 2021, No. 20-14.571 F-D) and (Cass. com., 6 June 2018, No. 17-10.103 FS-PBI).
The Court of Cassation’s Interpretation
It is here that the Court of Cassation provides a clarification on the procedural law of suretyship (paragraphs 8 and 9 of the ruling).
The Court recalls, on the basis of Article 71 of the Code of Civil Procedure, the crucial distinction between a “claim” (prétention — a demand made by a party) and a “defence on the merits” (moyen de défense au fond — a legal argument aimed at having the opposing claim rejected), in line with its prior case law (Cass. com., 4 November 2021, No. 20-14.571 F-D).
The Court holds that:
- When a surety invokes the forfeiture of interest against the creditor (the bank), on the grounds of failure to provide annual information (pursuant to the former Article L. 313-22 of the Monetary and Financial Code) in order to have the claim for payment of accrued interest rejected, the surety is invoking a defence on the merits.
- Consequently, the surety is not required to set out this defence in the operative part of its latest submissions.
- Article 954, paragraph 3, of the Code of Civil Procedure, invoked by the bank, applies only to claims (formal demands), and not to defences on the merits.
In conclusion of this examination, the Court of Cassation holds that the bank’s ground, which argued the opposite (namely that the forfeiture of interest should have appeared in the operative part), is unfounded.
The Practical Impact for the Surety
The failure to inform may constitute a “defence on the merits” when a special statutory provision and its case law on sanctions make the breach a ground for rejection (unenforceability of interest, forfeiture) of the opposing claim, typically for the annual information of sureties (now Civil Code, Article 2302), a solution not subject to limitation according to Cass. com., 4 November 2021, No. 20-14.571 F-D.
By contrast, for the pre-contractual duty to inform under general law (Civil Code, Article 1112-1) and most information obligations under consumer law, the breach calls for either a tortious liability action or a claim for nullity based on vitiated consent (and sometimes, in consumer law, a nullity derived from the essential nature of the missing information), which is not, by its nature, a simple defence on the merits, even if nullity may be raised in defence depending on the circumstances.
This procedural position is fundamental because it strengthens the protection of the natural person surety:
- Simplification of the defence: The surety does not need to formulate a formal and technical demand in the operative part for the judge to examine the failure to comply with the annual information obligation. It is sufficient for this argument to be developed in the body of the written submissions to constitute a defence on the merits against the bank’s claim for payment of interest.
- Near-automatic review: Even though the sanction (forfeiture) is severe for the creditor, it falls within a mandatory legal framework (Article L. 313-22 CMF, then applicable). The Court of Cassation confirms that the forfeiture of interest is a mechanism of natural defence of the surety against a claim that is not fully enforceable due to the creditor’s breach.
In other words, if the bank claims the debt, including principal and interest, the surety need only raise the failure to inform to have the interest component struck down. This argument acts as a legal shield against the claim for interest, a typical role of a defence on the merits.
