Les garanties indemnitaires

Abstract : Among guarantee alternative options expressed by the doctrine, compensatory guarantees are commitments which do not consist in substituting onself with the defaulting main debtor, but to undertake to do or not to do something. Based on a renewed interpretation of article 1120 of the French Civil Code, the contract performance by the surety bearer would constitute these garantees’ archetype: the promisor commits itself to bring in good performance of the original contract by the main debtor. If the performance of the principal obligations is belated or defective, the promisor will be considered as having broken its promise, and therefore its contractual liability is at stake. However, the undertaking to do something may also consist in a mere behaviour likely to increase every chance of the principal contract to be performed: many examples can be found in the letter of commitment practice within corporations, where the controlling company commits itself to watch over the management of a subsidiary company, to support its cash position, or to maintain its funding interest. This study reveals that grouping together these two types of commitment, the one through which the creditor is assured to gain satisfaction, and the one through which a mere behaviour has been promised, is a mistake. If the latter is a classic obligation to do or not to do something, the former finally consists in taking on a credit risk. Such an undertaking must be closed up with insurance contracts, and must not be governed by tort liability rules. Fruitful connections may therefore be worked out between the fields of personal guarantees and insurance.
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Emmanuel Netter. Les garanties indemnitaires. Droit. Université de Strasbourg, 2010. Français. ⟨tel-01623401⟩

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