Promissory Note: Two Creation Dates Void the Instrument and Release the Guarantor (Cass. com., 20 May 2026, No. 25-10.708)

French Supreme Court (Cour de cassation), Commercial, Financial and Economic Chamber, 20 May 2026, No. 25-10.708 (appeal dismissed)

What happened in this case?

The story is ordinary in its starting point and instructive in its outcome. A trading company (let us call it the debtor company) subscribes with its bank a first promissory note, dated 11 January 2021 and falling due on 15 February 2021. Two individuals stand surety for this payment by signing it as guarantors (aval): these are the avalistes.

As the maturity date approaches without payment being possible, a second promissory note is drawn up, this time falling due on 15 March 2021. Here again, the same two individuals guarantee the instrument. In banking practice, this mechanism has a name: the extension of maturity (report d’échéance). An instrument that has reached maturity is replaced by a new one whose maturity date is pushed back, in order to give the debtor additional time.

On 6 June 2021, the debtor company is placed into compulsory liquidation. The bank files its claim in the collective proceedings, then, on 4 September 2021, summons the two guarantors to pay in their capacity as guarantors of the second promissory note. This is a classic step: when the principal debtor is insolvent, the creditor turns to those who guaranteed the debt.

But the second promissory note contained a drafting peculiarity that was to change everything. The instrument stated both that it had been subscribed “at [place] on 11 February 2021” and, in a box specifically headed “date of creation”, the date of 15 February 2021. An arrow even ran from the article “on” to guide the reader towards the box. Two creation dates, therefore, on one and the same document.

The Rennes Court of Appeal (cour d’appel), in a judgment of 3 December 2024, overturned the first-instance decision and dismissed the bank’s claims: in its view, this confusion between two contradictory dates is equivalent to an absence of date, which deprives the note of validity and brings down the guarantee. The bank appealed on points of law. In the judgment under comment, dated 20 May 2026, the Commercial Chamber dismisses the appeal and fully endorses the reasoning of the Rennes judges.

What is a promissory note and why does its date matter so much?

The promissory note belongs to the family of commercial papers (effets de commerce), those negotiable instruments that circulate in business life and evidence an undertaking to pay. Unlike a simple contract, a commercial paper is subject to strict formalism, inherited from a long tradition of bills of exchange law. This formalism is not a lawyers’ affectation: it secures the circulation of the instrument. Anyone who receives a promissory note must be able to rely on what is written on the paper, without having to investigate the circumstances of its issue.

What particulars must a promissory note contain?

Article L. 512-1 of the Commercial Code lists the particulars that a promissory note must contain. Among them is the date on which the note is subscribed, that is, its date of creation. This date is not incidental: it makes it possible, among other things, to verify the maker’s capacity at the time of the undertaking, to determine the starting point of certain time limits and to fix the maturity date where it is set by reference to the date of creation.

The sanction for the absence of this particular is laid down in Article L. 512-2 of the same Code: an instrument in which one of the mandatory statements is missing does not take effect as a promissory note, subject to exceptions that are exhaustively listed. In other words, the document may exist as an ordinary acknowledgement of debt under general law, but it loses the attributes and force of a bill of exchange-type instrument.

Why are two dates equivalent to “no date”?

One might think that an excess of information is better than a shortfall: if the instrument bears two dates, it bears at least one, and the formalism would be satisfied. This is precisely the reasoning that the French Supreme Court rejects. When two distinct creation dates appear on the instrument, the reader cannot know which one to adopt. Neither prevails over the other. The contradiction creates an uncertainty that bill of exchange formalism does not tolerate.

The Court thus holds, citing Articles L. 512-1 and L. 512-2 of the Commercial Code, that “the contradictory mention of two distinct creation dates is equivalent to an absence of date, sanctioned by the nullity of the instrument”. The logic is inescapable: two dates that contradict each other are worth no more than no date at all, because neither makes it possible to fix with certainty the moment at which the instrument was created. The formalism requires certain information, not merely present information.

Why does the nullity of the note entail that of the guarantee?

This is where the decision directly concerns anyone who has guaranteed a commercial paper. The guarantee (aval) is the equivalent, in the world of bills of exchange, of a suretyship (cautionnement): a person guarantees payment of the instrument. But the aval has a particular feature that the general public often overlooks: it has a certain autonomy from the obligation guaranteed.

What is the difference between a formal defect and a substantive defect for the guarantor?

This distinction is the heart of the mechanism. In principle, the guarantor’s undertaking survives weaknesses in the obligation guaranteed: if the principal debtor, for example, lacks legal capacity, the aval remains valid. This is the autonomy of the aval, which protects the holder of the instrument. But this autonomy is subject to a major and well-established exception: it yields in the face of a formal defect. When the instrument itself is void because it does not comply with the formal requirements imposed by law, there is no longer a valid bill of exchange basis on which the aval can stand. The accessory falls with the principal.

Yet the absence of a date, or its equivalent, the contradiction of two dates, is precisely a formal defect. The instrument does not meet the formal requirements of Article L. 512-1. The French Supreme Court draws the direct consequence: the nullity of the instrument entails “as a consequence, [that] of the aval given on that irregular instrument”. The guarantor is therefore released, not because of any weakness in his or her own undertaking, but because the instrument guaranteed never had a valid existence as a bill of exchange instrument.

Why did the bank’s “extension of maturity” argument fail?

The bank had not resigned itself. To save the instrument, it put forward a line of reasoning that seemed to be common sense: the second promissory note had been issued to replace the first and to effect an extension of maturity. Consequently, it argued, its creation date could only be 15 February 2021, the maturity date of the first note, so that there was, in its view, “no possible ambiguity” as to the creation date of the second. The bank criticised the Court of Appeal for having misapplied Articles L. 512-1 and L. 512-2 by ignoring this economic context.

The Commercial Chamber clearly rejects this argument. It holds that the maturity date of a first promissory note is “irrelevant to the determination of the creation date of the second”. In other words, the economic context of the transaction, namely the fact that the second instrument replaces the first, does not make it possible to erase the contradiction that physically appears on the instrument. Bill of exchange formalism is assessed by reference to the particulars appearing on the document itself, and not according to the presumed intention of the parties or the overall economics of the transaction.

This clarification is important. It prevents the bank from “reconstructing” the missing date by deduction. The instrument must stand on its own. If the bank allowed two contradictory dates to remain on the document it had signed, it cannot, after the event, ask the judge to choose on its behalf the one that suits it. Formal rigour here operates in the guarantor’s favour.

What practical significance for sureties and guarantors who are pursued?

For persons pursued by a bank in their capacity as guarantors, this decision is an excellent illustration of a principle too often neglected: the form of the instrument is a ground of defence in its own right. When a bank claims payment of a commercial paper, the guarantor’s natural reflex is to dispute the amount or to invoke the difficulties of the principal debtor. Yet careful examination of the particulars appearing on the instrument can, on its own, defeat the claim.

The judgment forms part of settled case law that takes bill of exchange formalism seriously. The creation date is only one example among the mandatory particulars: the absence or irregularity of the designation “promissory note”, of the promise to pay, of the indication of maturity, of the place of payment, of the name of the beneficiary or of the maker’s signature are all points that deserve checking. Every missing or contradictory particular is a potential flaw in the instrument that the bank relies on against the guarantor.

The exact scope of the decision must nevertheless be measured. The nullity of the paper as a bill of exchange instrument does not necessarily mean the extinction of any debt: depending on the circumstances, the irregular document may sometimes be recharacterised and relied upon as a commencement of proof of an undertaking under general law. But this recharacterisation is not automatic, it requires separate conditions, and it in any event deprives the bank of the advantages specific to bill of exchange law, notably the rigour of the guarantor’s undertaking. For the guarantor, the gain is therefore considerable: he or she escapes the bill of exchange mechanism that made the undertaking particularly formidable.

What to do if your bank claims payment on a commercial paper?

The first step is to obtain and examine a complete copy of the instrument on which the bank bases its claim. Many guarantors pay without ever having seen the document, or without having examined it line by line. The presence and consistency of each mandatory particular must be checked: designation, date of creation, maturity, amount, place of payment, beneficiary, signature.

The second step is to check the chain of instruments where, as here, several papers have followed one another. Extensions of maturity, renewals or replacements multiply the documents and, with them, the risks of drafting inconsistencies. A contradiction between two instruments, or within a single instrument, may be enough to bring the undertaking down.

The third step, where insolvency proceedings affect the principal debtor, is to verify that the bank has properly filed its claim and that it complies with the rules specific to proceedings against guarantors in that context. These checks are technical and the time limit for responding to a summons is short: it is strongly advisable to consult a banking law attorney promptly, who will be able to identify all available defences, whether they relate to the form of the instrument or to the substance of the undertaking.

Key Takeaways

By this judgment of 20 May 2026, the Commercial Chamber confirms a rule that is as technical as it is protective: on a promissory note, two contradictory creation dates are equivalent to an absence of date, which voids the instrument and, with it, the aval given by the guarantors. The economic context of the transaction, even a simple extension of maturity, does not make it possible to cure this contradiction. For sureties and guarantors pursued by a bank, the lesson is clear: before discussing the substance, the form must be questioned. An instrument poorly drafted by the credit institution may be the most effective line of defence. At our firm, we systematically examine the formal regularity of the instruments and security that banks rely on against our clients, because that is often where the decisive flaw lies.

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