As a guarantor (caution), you play an essential role in the financing of a business or a project. However, the guarantee commitment carries serious consequences, and the law has provided protective mechanisms, particularly in the event of manifest disproportion between your commitment and your financial capacity.
One of the most important legal questions in determining whether you can be released from your obligation concerns the ability of your assets to cover the debt, not at the time of signing, but at the time you are effectively “called upon” (appelee) by the creditor.
Through recent case law, notably from the Court of Cassation, we can illustrate this fundamental point.
1. Protection against a disproportionate commitment: the legal framework (for guarantees concluded before 1 January 2022)
For guarantees (cautionnements) concluded before 1 January 2022, consumer law (former Article L. 343-4, applicable in certain configurations) offers a major protection to individual guarantors.
This provision states that a professional creditor cannot rely on a guarantee agreement concluded by a natural person if the commitment was, at the time of its conclusion, manifestly disproportionate (manifestement disproportionne) to their assets and income.
However, this protection is subject to a crucial exception: if, at the time the guarantor is called upon, their assets allow them to meet their obligation, they will not be released.
Thus, two temporal moments are determinative:
- The date of conclusion of the contract (to assess the initial disproportion).
- The moment when the guarantor is called upon (to assess the current ability to pay).
2. The precise definition of the moment “when the guarantor is called upon”
The interpretation of the expression “at the moment when the guarantor is called upon” is essential, as it determines whether your financial situation, even if initially fragile, has improved or is sufficient to cover the remaining debt.
The Court of Cassation has provided a decisive clarification on this point. To assess whether the guarantor’s assets allow them to meet their obligation, the judge must consider the position on the date the guarantor is served with legal proceedings (assigne).
It is therefore neither the date of the principal debtor’s default, nor the date of the simple formal notice by letter, but rather the date of the legal act initiating the judicial recovery proceedings that is authoritative.
Key takeaway: The moment “when the guarantor is called upon” corresponds precisely to the date of service of legal proceedings (assignation en justice) initiated by the creditor (for example, a bank).
3. Illustration through case law (CA Limoges and Cassation 2024-2025)
The case decided by the Court of Appeal of Limoges on 30 May 2024, then quashed by the Court of Cassation on 9 July 2025, provides a perfect illustration of the application of this principle and the possible errors of assessment.
The context of the case
In this case, Societe BANQUE POPULAIRE had granted loans to a company, SAS [C] [K]. Mr. [L] [C] and Mrs. [U] [K] stood as joint and several guarantors (cautions solidaires) for these loans, committing a total amount of 397,500 euros.
Following the judicial liquidation (liquidation judiciaire) of the debtor company on 23 November 2021, the bank:
- Filed its claims and sent the guarantors a formal notice to pay on 15 December 2021.
- Served the guarantors with legal proceedings for payment on 17 and 18 February 2022.
The assessment of the disproportion
The Court of Appeal of Limoges found that the guarantors’ commitment was manifestly disproportionate at the time of its conclusion: the guarantors were without employment or income at the time of signing and had only limited real estate assets (their home). The court concluded that the bank could not rely on the guarantee.
However, to dismiss the exception allowing the creditor to rely on the guarantee, even if disproportionate, where the assets have increased at the time of the call, the Court of Appeal merely noted that the guarantors’ assets “had not increased at the time the guarantee was called upon.”
The Court of Cassation’s ruling
The bank challenged this ruling, arguing that the court of appeal should have compared the guarantors’ assets not to the initial amount of their commitment (397,500 EUR), but to the amount of the sums actually claimed from them at the time they were called upon. The bank was claiming much smaller amounts (approximately 91,186.06 EUR and 11,153.16 EUR).
The Court of Cassation upheld the bank’s position and quashed the decision, because the court of appeal:
- Failed to determine whether, on the date the guarantors were called upon (served with proceedings), their assets enabled them to meet the sums claimed.
- Failed to verify whether the value of their residential property (purchased for 145,000 euros, according to the bank’s submissions) was sufficient to cover the remaining debt.
4. Conclusion for guarantors
To determine whether you are liable in the case of an initially disproportionate guarantee, you must imperatively identify the date on which the creditor served you with legal proceedings (assigne en justice). It is on this date that the state of your assets (assets, liquid funds, real estate, etc.) is compared to the outstanding amount owed to the creditor.
If the debt at that precise moment is covered by your assets, even if your situation was initially precarious, the creditor will be able to rely on your commitment. Vigilance is therefore required not only at the time of subscription, but especially at the commencement of legal proceedings.
