In a decision dated 26 November 2025 (No. 23-19.203), the Commercial Chamber (chambre commerciale) of the Court of Cassation (Cour de cassation) reminds professional creditors of a strict rule: the closure of a current account does not release the bank from its annual information obligation as long as the debit balance has not been fully cleared. This ruling provides an essential clarification on the distinction between the obligation of coverage (obligation de couverture) and the obligation of payment (obligation de règlement).
The law of suretyship (cautionnement) is permeated by a principle of protection of the surety, whether a natural person or a company director, vis-à-vis the professional creditor. At the heart of this protective framework lies the annual information obligation, whose temporal and procedural scope this ruling clarifies.
Cass. com., 26 nov. 2025, n° 23-19.203, Publié au bulletin
I. Unification of a Protective Regime: From Article L. 313-22 CMF to Article 2302 of the Civil Code
Historically, the annual information obligation was fragmented across several texts (Monetary and Financial Code, Consumer Code, Civil Code). In the case submitted to the Court of Cassation, the facts were governed by the former Article L. 313-22 of the Monetary and Financial Code, which required credit institutions that had granted financial facilities to a company to inform the surety, each year before 31 March, of the amount of principal and interest remaining due.
It should be noted that the reform of security law of 15 September 2021 completed this evolution by unifying these regimes. Henceforth, Article 2302 of the Civil Code constitutes the reference text for suretyships subscribed since 1 January 2022. While the textual basis has evolved, the case law logic of protection, reaffirmed by the ruling of 26 November 2025, remains unchanged: the information is owed as long as the risk for the surety persists.
II. Forfeiture of Interest: A Defence on the Merits Exempt from the Strictures of the Operative Part
An important procedural issue was decided by the Supreme Court. The bank argued that the surety’s claim for forfeiture of the right to interest was inadmissible because it had not been explicitly mentioned in the operative part (dispositif) of its appeal submissions (pursuant to Article 954 of the Code of Civil Procedure).
The Court of Cassation rejects this formalistic interpretation:
- Legal classification: The forfeiture of interest is not a claim seeking to obtain a new advantage, but a defence on the merits (défense au fond).
- Consequence: It may be raised in the body of the submissions without necessarily appearing in the operative part for the judge to be required to examine it. This solution safeguards the rights of defence for sureties in the face of the complexity of appellate procedure.
III. Continuation of Information Beyond Account Closure: The Major Contribution of the Ruling
The dispute concerned the suretyship for a current account balance. The Court of Appeal of Caen had held that the closure of the account marked the end of the annual information obligation, presumably considering that the debt was “fixed” at that date.
The Court of Cassation overturns this reasoning based on a fundamental distinction in the law of obligations:
- The obligation of coverage (obligation de couverture): It concerns future debts. The closure of the account effectively ends this obligation; the surety is no longer bound to guarantee new debit transactions subsequent to closure.
- The obligation of payment (obligation de règlement): It concerns the debt arising at the time of closure (the final balance). As long as this balance has not been repaid by the principal debtor or the surety, the debt exists.
The Court’s decision is unequivocal: the annual information obligation survives the closure of the current account. As long as the surety is liable to be pursued for payment of the balance, the surety must be informed annually of the amount of the debt (principal, interest and ancillary costs). As scholarly commentary notes, it is precisely at the time of closure — often synonymous with financial difficulties — that the information is most crucial for the surety.
IV. The Sanction: An Automatic and Rigorous Forfeiture
The warning for professional creditors is severe. The failure to provide annual information between 1 January and 31 March of each year results in:
- The forfeiture of the right to contractual interest (déchéance du droit aux intérêts).
- The allocation of payments made by the principal debtor in priority to the principal of the debt.
- Only interest at the statutory rate may accrue, but solely from the date of formal notice to the surety.
Conclusion: Heightened Vigilance for Banks
The ruling of 26 November 2025 confirms that the accessory (the suretyship) follows the fate of the guaranteed obligation until its total extinction, and not until the termination of the banking relationship.
This ruling, published in the Bulletin, marks a further step in the consolidation of the mandatory and protective nature of the surety’s right to information.
