Des exceptions opposables par la caution au créancier

The question of exceptions that the surety may set up against the creditor is based, currently under French Law, on the distinction between those which are inherent to the debt and those which are purely personal to the principal debtor (Art. 2012 and 2036 French Civil Code of 1804, similar to Art. 1932 and 1958 Civil Code of Lower Canada, Art. 3036 and Art. 3060 Louisiana Civil Code of 1870). This distinction is based on an incidental presentation of Roman Law rules by Pothier (1699-1772) and has resulted currently in many controversies. Notably, a criticized decision of the Cour de cassation decided that fraud is a purely personal exception. The French preliminary project of reform of law of securities intends to resolve the issue by stating that both sorts of exceptions may be set up and by specifying some exceptions. However, the proposed provisions do not clarify the matter and give rise to some difficulties. To resolve the matter, the central place of natural obligations and the civil validity of its suretyship must be asserted. In addition, one should take into account that the Civil Code only mentions the existence of two categories without further detail. Therefore, on the basis of the accessory nature of the suretyship, the distinction should be removed from the law while being kept as legal doctrine and the provisions of the Civil Code should be adapted.