Dissertations / Theses on the topic 'Cautionnement'
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IBRAHIM, FATME. "L'evolution du cautionnement." Rennes 1, 1993. http://www.theses.fr/1993REN11020.
Full textThe new social and economic evolution creates practically a new situation; a credit necessity to save the compagny. But the granting of the credit is bound to the presence of a guaranty which ensures its repayment. The salvaging of the company depends of the preservation of the credit continuity. Facing to the conflict of interest of the parties the guaranty evolution is ecplaind au analyse of the guaranty purpse (guaranty contract ) and the guaranty protection modifications and varied changes ore then anticipated. This modifications could not change the juridical aspectof the contract. Unline the other they have changed some of its juridical effetcts
Ansault, Jean-Jacques. "Le cautionnement réel." Paris 2, 2006. http://www.theses.fr/2006PA020074.
Full textChieudji, Nguedou Christelle. "Sociétés et cautionnement." Thesis, Toulouse 1, 2018. http://www.theses.fr/2018TOU10049.
Full textThe importance of surety bond for companies is undeniable. In addition to contributing to the growth of the latter through access to credit, surety bond is a lever of speed and simplicity, which are major assets required by the business world. However, its implementation in the context of companies is not without difficulties. Indeed, the articulation of surety bond within companies gives rise to a multitude of controversies and ambiguities. The combination of corporate law and security law rules is not always uniform. The complexity of the implementation of surety bond within companies takes on particular importance when it comes to adding to the panel of existing rules, the multiple productions of case law and the countless contributions of doctrine. These various confrontations deprive the material of its fluidity, its coherence and, consequently, its effectiveness. Its primary essence is tainted by it and the only trait of character that seems not to suffer so much reproach is its singular character. The current inventory shows that the implementation of surety bond in companies is unclear. The incessant interventions of the legislator, the disagreements between the legal actors, tend to pollute his regime and compromise it, this observation is valid in these two variables, whether the assurance is given by a natural person, the company director or by a legal person, the company. In such a context, it is imperative to restore the surety bond to its former glory
Boudiala, Boniface-Roux. "Erreur, cause et cautionnement." Clermont 1, 2002. http://www.theses.fr/2002CLF10249.
Full textError matter is rarely studied in the scope of unilateral contracts. Due to the fact that only the guarantee is bound, error can be the result of its implementation. The goal of our study was to demonstrate what kind of errors can be compatible with this particular contract
Ledain, Santiago Richard. "La circulation du cautionnement." Thesis, Evry-Val d'Essonne, 2011. http://www.theses.fr/2011EVRY0044.
Full textTwo different realities with respect to a guarantee which are basically its isolated transfer, as an accessory to a contract which benefit is assigned, and its transmission, within the frame of a wider transaction resulting in an entire patrimony being transmitted, are overlapped by the concept of circulation. Such a circulation of the warranty arising out of a contract of guarantee among successive creditors is not restricted neither by the legal nature of the latter, that can be construed as an obligation of “praestere”, nor by the mechanisms authorising such a circulation, which are respectively the French “cession de creance” and “transmission universelle de patrimoine”. Both mechanisms shall operate a substitution with respect to the beneficiating creditor, so as to preserve the specifics of the original link created between guarantor and creditor, in order to maintain the full effects of the guarantee for the future, in the absence of any alteration of the guarantor’s commitment purpose. However, French case law currently departs from this interpretation and, in consideration of the nature “intuitu personae” which traditionally affects the guarantee, systematically refuses to maintain the commitment of the guarantor to guarantee the creditor for the future, only allowing the survival of an obligation of payment further to the circulation of the actual guarantee. With respect to the transmission of the guarantee, certain issues also relate to companies law. The exception created by French case law to the universal transfer of patrimony mechanism challenges the position of the French legislator whose objective was to entail the transmission of a patrimony, considered a priori as a unique and indivisible whole, trough a simplified procedure. The European legislator, in the same fashion as certain neighbouring countries’, welcomed such a circulation. In consideration of these obstacles, certain alternatives to the guarantee have been contemplated, while from a prospective perspective, several adaptations might allow an effective circulation of the latter
Séjean, Michel. "La bilatéralisation du cautionnement." Thesis, Evry-Val d'Essonne, 2009. http://www.theses.fr/2009EVRY0037.
Full textThe expression « bilatéralisation du cautionnement » (« Bilateralisation of Suretyship ») implies that the contract of Suretyship is no longer a unilateral contract whereby the Surety is the only obliged party.. First, the study of this hypothesis enables to reexamine the criterion of the unilateral feature of the suretyship contract, in order to propose a definition and to examine in what conditions this unilateral feature may vary. The approach chosen for the characterization of the suretyship is then carried on, in order to verify what is left from the regime of unilateral contracts in the domain of suretyships. It appears that suretyship is always a unilateral contract, and that French law continues to treat it that way.. Second, the study is carried on by the analysis of the characterisation and the regime of the legally- and judicially-imposed duties on the beneficiaries of a suretyship for thirty years. In suretyship law, the legal duties are « incombances », a norm inspired from the laws of Switzerland, Germany and Belgium. In civil law, the creditor is bound by the duty of good faith, loyalty or even behavioral consistency, which all exprès the binding power of the contract of suretyship but hide no contractual obligation per se, strictly speaking. As for the régime of duties imposed upon the creditor, it is dominated by the sanction of forfeiture in suretyship law, and by civil liability in civil law. In the end, changes do not affect the unilateral aspect of the suretyship contract ; they should alter the way we approach the elements that cast a doubt on it, be it in the law of obligations of in the judicial practice
Vidal, Roxanne. "Cautionnement et responsabilité civile." Thesis, Montpellier, 2015. http://www.theses.fr/2015MONTD045.
Full textThe suretyship, archetypal model of personal guarantees, has always been the centre of antagonistic stakes. If the main characteristic of a guarantee is to be at the service of the creditor, the guarantor holds however an increasing significance in the contractual relation, as the importance of the protective framework established both by the law and caselaw illustrates it. As such, civil liability appears as a technique particularly used by the courts and constitutes a major development axis on the subject, as, for example, the development of the duty to warn or the requirement of proportionality illustrate it. In view of this, the role of the responsibility, its influence and its utility are all core issues as to regard their theoretical and practical interests. Both factor of evolution of the contract of suretyship and suretyship law, the relations between suretyship and civil liability have much to teach
Oury-Brulé, Manuela. "L'engagement du codébiteur solidaire non intéressé à la dette (article 1216 du Code civil)." Evry-Val d'Essonne, 2000. http://www.theses.fr/2000EVRY0009.
Full textSeye, Balla. "La pratique du cautionnement bancaire." Saint-Etienne, 2005. http://www.theses.fr/2005STETT075.
Full textThe evolution of the guarantee authorized by physical people to the profit of the banks involved a deep change of the guarantee. Indeed, eager to make their safety more effective in order to recover their credits more easily, the banks made contract of guarantee a true contract of adhesion and developed other types of guarantees like the guarantee of the future and unspecified debts (omnibus). This evolution of safety, particularly restrictive of the rights of the guarantee, encouraged jurisprudence and the legislator to intervene in order to inject an amont of balance in the relations between the guarantee and the creditor. With the intention, they anacted a certain number of regulations in order to reinforce the rights of the guarantee while reducing its obligations. Thus, the multiplication of the standards of framing of the guarantee is the direct corollary of the evolution of the practice (1st part). Vis-à-vis with this normative framing, the contractual practice adopts from now an attitude of circumstances. Indeed, two things seem today to be used to him as repere in the adaptation of its own evolution. It acts on the one hand of the stability of the standards (in the time and precedents) and on the other hand gravity of the sanctions envisaged by the standards, according to whether they involve the total release of the guarantee or a simple reduction of the rights of the creditor. The normative production thus became the criterion of the evolution of the practice (2nd part)
Achour, Dehlila. "Cautionnement et droit des sociétés." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30065.
Full textAt present, surety law is a matter that has totally been breaking apart. This fragmentation of surety law is mainly due to the abundance and overlapping of legislative acts: there are more interventions on the part of the legislator, more jurisprudential developments than we can count. The matter could have be simplified, had it benefited from the reform of security law in accordance with the order of 23 March 2006. But that was not the case.In relation to corporate law, the subject is becoming even more complex. In corporate law, surety is the most widespread guarantee. To a company it represents, most of the time, an unsafe act because it may suffer adverse consequences from it. At the same time, regulation should retain some flexibility to meet the speed requirements of the business world. This is a delicate balance to achieve.This study aims at grasping the relationship between surety and the rules of corporate law. To carry out this undertaking, it was appropriate to consider the subject from two different angles, namely the surety bond as it is issued by a company, and that as granted for the benefit of a legal person.Such guarantee whether it is granted by a company or to it, is liable to give rise to difficulties with regard to the principles governing corporate law. Which explains why certain rules have been set. The guarantee is therefore governed by specific corporate rules that transcend the common law rules made to that effect. But it also involves meeting the formal requirements designed to protect the individual guarantor, and binding the creditor to obligations such as the duty of disclosure, duty of warning, the principle of proportionality ...If the Dutreil law has failed to observe the requirements of cohesion and simplification of surety law, can we therefore say that the future is dependent on a unification of the various laws pertaining to surety?
Diarra, Abdouramane. "Cautionnement et entreprises en difficulté." Thesis, La Rochelle, 2017. http://www.theses.fr/2017LAROD006/document.
Full textThe treatment of the economic difficulties of companies was originally oriented towards liquidation because of its traditionally moralistic approach, since bankruptcy was then necessarily faulty. Driven by the various economic crises and mass unemployment that they provoked, it became clear to the legislator that such an approach to economic failure had to evolve.Thus, for several decades now, the emphasis has been on preventing difficulties. In this new context, the legislator intends to rely on the guarantee, a natural person, as a lever of anticipation. It thus exploits the status of secondary debtor of the latter, hoping that its fear of being called after the bankruptcy, will lead it to direct the principal debtor towards the preventive procedures. It is for this purpose that it extends, under certain conditions, the benefit of the protective measures enacted in favor of the principal debtor in the context of such proceedings. In so doing, these measures constitute a derogation from the guarantee in the context of collective proceedings, which should encourage creditors, who seek above all the settlement of their claims, to consider other mechanisms of this type as collateral for the insolvency of the principal debtor is not the primary function. In turn, the guarantor, in order to ward off the risk of a definitive contribution burdening it in the event that the procedures envisaged have not resolved the economic difficulties of the principal debtor, will have to explore different avenues which will allow it to dilute this risk
Kouacou, Agaman Cyprien. "La portée du caractère accessoire du cautionnement." Nice, 1985. http://www.theses.fr/1985NICE0002.
Full textZio, Moussa. "Le cautionnement à l'épreuve du droit de la consommation, perspective d'évolution du cautionnement en droit OHADA." Thesis, Toulouse 1, 2014. http://www.theses.fr/2014TOU10044.
Full textPiquet, Sabine. "Cautionnement et droit des régimes matrimoniaux." Montpellier 1, 1995. http://www.theses.fr/1995MON10024.
Full textIf the law of bail and the law of matrimonials forms are involved with different imperatives, their necessary combination results in a double protection, the married couple's protection against creditor and one spouse's protection against her husband or his wife. Different cures can be considered for dangers of bail during contract's formation or after. One spouse's protection against the other one has only imperfectly been realised by the 23th of 1985's december statute for legals' forms. Others arrangements can be formed
Ella, Andoume Wenceslas. "Le cautionnement donné à une société." Thesis, Nancy 2, 2010. http://www.theses.fr/2010NAN20013/document.
Full textThe activity of a company (society). involves around contracts it concludes with its partners. The conclusion of these contracts is conditioned under the solvency and the credibility of this company To raise this condition, it is necessary that a person makes a commitment to the partner contracting of the company the creditor, to assume personally the load of the payment pressing on this company, debtor, in case she would weaken. This person, the pledge, is going to add his or her heritage to the debtor company by putting the credit attached to her or him to the advantage of this last one. A contractual relation intuitu personae builds up itself then between the pledge, the debtor company from which the execution of the commitments is guaranteed and the company creditor, beneficiary of the caution money : the pledge makes a commitment considering the links which unite him or her with the debtor company and only her or his status is determining ; the person of the creditor is indifferent to her or him - and mutually - and a mutual confidence has to exist between both. Nevertheless, this character intuitus personae as the commitment of the pledge will have the effect of weakening the vigour of the contractual link while, at the same time, the caution money given as safety of execution of the commitments of the debtor company is a contract which must be executed whatever are the constraints of time. Now, the pledge can see his or her situation evolving in the point to lose his or her status when she or he made a commitment. In addition, the company - debtor or creditor - can be touched more or less profoundly in the course of social life by various events. These events echo inevitably on the commitment of the pledge. The solutions of the substantive law, based on the binding effect of contracts, take into account neither these events, nor the character intuitus personae of the caution money so given, less still its affectation as guarantee of the commitments of a company. These solutions are not satisfactory and it is necessary to consider the caution money guaranteeing the commitments of a company as a specific contract to perpetuate this operation while respecting the logic of the business law
Sobeih, Nabil. "La lettre de garantie internationale." Paris 1, 1989. http://www.theses.fr/1989PA010251.
Full textMost of these instruments are issued to be paid unconditionaly and on a demand of the foreign beneficiary. Also, it's issued by the local bank of the latter. These unconditional guarantees are often the subject of conflicting interests between importers and exporters. The importers (buyers) want an instrument and with that they can be cashed without contestation and without producing any documentation. This instrument places the importer in a powerful position, in the other way, the exporters (sellers) would prefer not to give third party guarantees at all. Payment on demand of guarantees sum given to the beneficiary the great security of getting the amount as like the cash deposit. Some characteristics are common between on first demand guarantees and the accessory guarantees, but they are different. The on first demand guarantees are dependent of the underlying contract, but the accessory guarantee depends on the principal obligation. The beneficiary of a simple demand guarantee has to demand payment -if it is not clairly fraudulent- without proving any conditions. Brively, on demand guarantees operate in a similar way a letters of credit and this bringing has useful consequences. The guarantor can refuse payment in the case of the fraudulent or abusive condut of the beneficiary. The i. C. C. Offers uniforms rulers for guarantees (brochurs no 325) but so far they have not been widely accepted
Agbenoto, Koffi Mawunyo. "Le cautionnement à l’épreuve des procédures collectives." Le Mans, 2008. http://cyberdoc.univ-lemans.fr/theses/2008/2008LEMA2003.pdf.
Full textRebibou, Philippe David. "Le cautionnement consenti par une personne mariée." Nice, 1996. http://www.theses.fr/1996NICE0022.
Full textBouquet, Alexandre. "Le cautionnement pénal, entre tradition et modernité." Paris 1, 2010. http://www.theses.fr/2010PA010278.
Full textAgbenoto, Koffi Mawunyo Santos Akuété Pedro Dupichot Philippe. "Le cautionnement à l'épreuve des procédures collectives." [S.l.] : [s.n.], 2008. http://cyberdoc.univ-lemans.fr/theses/2008/2008LEMA2003.pdf.
Full textTitre provenant de l'écran-titre. Bibliogr. f. 402-443.
Nganga, Fabien. "Le cautionnement des sociétés par leurs dirigeants." Paris 13, 1996. http://www.theses.fr/1996PA131008.
Full textWhen the leader of a community, more often than not, the company manager appeals a credit to the bank for the company account, the financial institution demands the social manager to stand surety for the whole commitments of his company and also the current sale. This banking transaction ains to avoid the rule of the limited hability company (s. A. R. L. ). Nevertheless, in case of suit by the creditor, the manager have a few means only to escape from the payment, when their company doesn't hold their commitments. Being definitely supposed to know every thing about it, they can't pride themselves on the defects ( vices ) of the consent just a signature of the surety bond is enough to involve them. Furthermore it's very arduous for them to let admit the responsability of the bank based on a mistake in the credit distribution. The banks must give the whole information to physical people. Only these last one benefit from the rule owing to which, when a collective procedure is on, the recurse against the surety bond is postponed
Feviliye-Dawey, Claudia Inès. "La garantie financière professionnelle." Rouen, 1999. http://www.theses.fr/1999ROUEL326.
Full textSome professionnals are obliged by the law to have a guaranty for funds, effects and values they receive from public. This guaranty serves to restitute those deposits. The guaranty is regarded as a surety bond. But surety bond is only one of the technics organised by the law to value financial guaranty. There are also insurance, privilege. Financial guaranty is specific cause of its special appropriation to the deposits guaranty. It doesn't depend of the contract between the professionnal and his client, in many aspects, but it isn't a front row guaranty. The fault of the professionnal or of the client doesn't mind, in contrary of insurance. Professionnal guaranhas two sorts of rules in its consequences; its own rules, fundamentals, and those of the technics which value guaranty. Fundamental rules of the guaranty prevalue. Beside financial guaranty, we can propose the way clients could claim their deposits in a special account instituted by the law
Cabrillac, Séverine. "Les garanties financières professionnelles." Montpellier 1, 2000. http://www.theses.fr/2000MON10002.
Full textBertrand, Olivier. "L'information de la caution." Poitiers, 1999. http://www.theses.fr/1999POIT3011.
Full textJäger, Regina. "Kautionen im Agrarrecht der Europäischen Wirtschaftsgemeinschaft /." Baden-Baden : Nomos, 1994. http://catalogue.bnf.fr/ark:/12148/cb37464146t.
Full textViret, Marie-Pierre. "Le principe de bonne foi et le droit des sûretés : essai d'une conciliation entre impératifs contradictoires." Avignon, 2005. http://www.theses.fr/2005AVIGXXXX.
Full textBruttin, Jean. "La clause dite de sequestre et de nantissement du prix." Paris 10, 1991. http://www.theses.fr/1991PA100023.
Full textNgafaounain, Jean. "Les mécanismes de protection de la caution." Orléans, 1993. http://www.theses.fr/1993ORLE0001.
Full textThe necessary protection of the guarantor implies preliminary resolution of the security crisis; which one results from the uniform treatment of the different types of this contract and of its isolation from the other contracts which it forms nevertheless a coherent whole. Therefore, a typology more in accordance which the contemporary practices of the contract should distinguish between three types of security: the professional security, the business security and the civil security. These securities answer to different logics. So it would be proper to discriminate between them. All the more so since the needs for the guarantor's protection vary from one type of security to another. Furthermore, the security can only be understood by the light of the contracts which support it. Only a group analysis integrating both the grating of credit convention (link between caution-debior) and the basic contract (link between debitor-creditor) would render the reality of the contract. Referring to this two condition that the security will come out of its current crisis and that the guarantor will effectively be protected by the mechanisms which are a matter for the general theory of contracts
Bourassin, Manuella. "L'efficacité des garanties personnelles." Paris 10, 2004. http://www.theses.fr/2004PA100125.
Full textIn order to stop the current crisis of the sureties, it is advisable to explain the legal conditions of their efficiency (pursuit of the objective of efficiency through the law and efficiency of the law itself). Once isolated the qualities and gaps of the existing law, in the light of these conditions, a reconstruction can be proposed. The overall reform of the law of the sureties should establish a primary system based on their common characteristics (commitment to guarantee, essential secondary character, effects of the constitution and of the guarantee realization), and special rules based on their distinctive characteristics (physical personality of the guarantor, cause of the commitment of coverage, object of the payment commitment). The new law should contain protective rules for creditors, as well as constraints useful for the guarantees efficiency and necessary for the respect of the new European community requirements
Arthozoul, Magali. "Le cautionnement dans le redressement et la liquidation judiciaires." Toulouse 1, 2002. http://www.theses.fr/2002TOU10027.
Full textThis thesis is dedicated to the study of the guarantee within the context of the process of compulsory liquidation undergone by the main debtor, and will attempt to reconcile the conflicting interests of the creditor and the guarantee that is his surety
Brocard, Emmanuel. "La place du cautionnement dans les procedures de reglement du passif et de redressement du debiteur : essai sur la nature accessoire du cautionnement." Reims, 1996. http://www.theses.fr/1996REIMD004.
Full textSchmid, Eva. "Die Mehrheit von Sicherungsgebern im deutschen und französischen Recht : eine rechtsvergleichende Untersuchung unter besonderer Berücksichtigung der Rechtsinstitute des cautionnement solidaire und des cautionnement réel /." Hamburg : Kovač, 2000. http://www.gbv.de/dms/spk/sbb/recht/toc/318765497.pdf.
Full textOualji, Imane. "Le cautionnement professionnel des petites et moyennes entreprises au Maroc." Perpignan, 2002. http://www.theses.fr/2002PERP0550.
Full textIn the emerging international economic context,the small and medium sized entreprises are confronted with two types of impediments, inercusign investment risks and financing difficulties. To overcome these problems, entreprise should be able to make use of an efficier competitive, and transparent financing framework. In order the key role associated with the guaranties related to loan granting, the moroccan governement has made dispositions for entreprises the services of a numbre intitutions of guarantiees. On of this technical instrument have ben progressively elaboreted on practical experience professional warranty is one of these techniques wich has an cutstanding position. As opposed to materiel piedges which were largely developped and exhaustively described both in Morocco and aboard, professional warrantee has not been an object of a general andy, this is what motivates the interest in the study of professional warrantee of small and medium sized entreprises
Ouane, Abdoulaye Guimba. "Quelle place aujourd'hui pour la lettre d'intention ?" Paris 10, 2005. http://www.theses.fr/2005PA100120.
Full textThe letter of intent appeared in the international trade at a rate of the insufficiency of traditional safeties and the rigorous rules governing the guarantee. It was born in France and Western Europe in the years 1970 and made since a considerable rise. The instrument is distinguished from other safeties by the complexity of the determination of its legal status. On the matter, the various systems of right give a design very different as for the qualification from the letter of intent. The dispute on the letter intensifies so much so that jurisprudence compared it to the guarantee and imposed to him the rigorous rules of the company law. From there, authors put questions about the future of the letters of intent and predicted their decline. This is why, we think that a new examination of the qualification of the letter of intent is essential. Moreover, the legal instrument being very marked international, difficulties exist as for the legal qualification and with the complexity of the conflict method. We will propose an outline of solutions to the problems arising. This study has as an ambition to analyze the letter of intent as a whole, by determining its place in the operations of internal and international credit
Kalieu, Yvette Rachel. "Les garanties conventionnelles du fournisseur de crédit en droit camerounais." Montpellier 1, 1995. http://www.theses.fr/1995MON10044.
Full textThe cameronian law systel offerts to the reditor a variety of guaranrantees. He can use general guarantees as surety-ship, mortage or pledged chattels. But these guarantees are not particular to the cameronian law. They have been introduced a long time ego by the colonian authorities and have been conserved. As a result of this fact, the guarantees are no treally efficience, they are not well adapted to the social, economical and juridical surroundings. The creditors, the loan societies in particular therefore search for new guarantees which can be more efficience and welle adapted. That is why some new guarantees which appears today kike the leasing are introduced in cameroon. But there is stiil no general reglementation. The loan societies must therefore search for some specific quarantees well adapted to the environment. Some technics, some institutions that already exist in the social and economic text can be adapte and used for guarantees purpose. If they are well adapted, these guarantees will be more efficience
Oury-Brulé, Manuela. "L'engagement du codébiteur solidaire non intéressé à la dette : article 1216 du code civil /." Paris : LGDJ, 2002. http://catalogue.bnf.fr/ark:/12148/cb388708444.
Full textAnglade, Jean-Laurent. "Le régime juridique de la lettre de crédit standby." Montpellier 1, 1998. http://www.theses.fr/1998MON10031.
Full textFerreira, Georges. "Les garanties indemnitaires." Versailles-St Quentin en Yvelines, 2002. http://www.theses.fr/2001VERS011S.
Full textIn French law, the contracts of indemnities derive from the Roman law that some European countries have also integrated in their law. It's an independant undertaking to pay the beneficiary of proper contractual performance. You can also find this concept in the first demand garantee and the garantee insurance. The garantor directly pay the beneficiary of proper performance. But, the contracts of indemnities are applied especially when indemnity is subsidiary. For example, in the "convention ducroire", "porte-fort" and the letters of comfort. In these cases, the garantor ensures the beneficiary for his own non-performance. Finally, there is only one concept of contracts of indemnities. It's an engagement to ensure principally the proper contractual performance and subsidiary to pay a substitute performance. In this application, the concept have been used as rules of garantee and contract. Then, the contract of indemnity seems to be partly as a due of indemnity assumed by "third-garantor". Therefore, we have to seek the essence of the contract of indemnity in the rules of liability indeed in the theory of substitute performance. Nevertheless, common law rules can't be used. The concept of contract of indemnity has to be raised on law. This law is the "porte-fort" of clause 1120 c. Civ. The garantor ensures the beneficiary of proper contractual performance. If he doesn't, the garantor has to pay a substitute performance
Netter, Emmanuel. "Les garanties indemnitaires." Strasbourg, 2010. https://hal-amu.archives-ouvertes.fr/tel-01623401.
Full textAmong 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
Sedalo, Vincent. "Les mécanismes de garantie dans les financements octroyés par les institutions financières multilatérales." Nice, 1998. http://www.theses.fr/1998NICE0024.
Full textThe debt crisis of 1982 had demolished the idea according to which, states is not miss to the execution of their contractual liabilities, especially, the obligation to pay their debts. Contrary to commercials banks, who in the euphoria of the oil boom and the retraining of petrodollars, gave loans without taking into account the capacity of repayment of their borrowers, the multilateral financial institutions, had the merit to develop a rigorous and a reassuring approach. This approach draws her specificity in the hybridizes nature of his inventors. Indeed, the multilateral financial institutions seen at a time like etablishments with bank caracter and development organizations. Also, they try to achieve through their guarantees mechanisms, the simbiosis of two different objectives: - to stay up to financial stability of the institution - to help to the lasting development of the borrowers. In this perspective, their approach trancends the banker's classic gait (which respected essentially the financial orthodoxy) and it integrates stakes of a lasting development. The leading idea of the gait of the institutions in reason, consist in admitting that odds execution of borrowers liabilities, depends minus of the introverted safeties, that of the economic performances and social of it, as well as of the success of projects or programs finances. From then, the likely preventive approach having the tendency to select some bankable projects and to create a suitable economic and social environment, is completed by a follow up of the execution of projects and the obligations of those taking part
Monkam-Djadji, Madeleine. "Les problèmes juridiques et fiscaux soulevés par le cautionnement dans les procédures collectives." Paris 13, 1990. http://www.theses.fr/1990PA131021.
Full textThe recent evolution of the bankruptcy law has entailed a crumbling of reals securities ; this creating the reluctance of the creditors to use them - they prefer the bails-bonds such as security bond. The rules of this legal device whose nature conciliates the security of the creditor and the protection of the guarantor are very influenced by the measures taken in favour of the defaulted debtor. The situa- tion of the guarantor in thus aggravated which often results in an over protection which might reveal itself harmful. The security bond has therefore to play its role and has to be influenced as other legal institutions, by the law of bankruptcy. This is all the more true the guarantor might find in fiscal law the ultimate counter- weight to the strictness of the legal solutions which affect him in this framework. This possibility is currently submitted to strict conditions which should be enlar- ged so that the socio-economic surrounding be taken into account
Le, Magueresse Yannick. "Des comportements fautifs du créancier et de la victime en droit des obligations." Paris 11, 2005. http://www.theses.fr/2005PA111011.
Full textLegeais, Dominique. "Les Garanties conventionnelles sur créances /." Paris : Economica, 1986. http://catalogue.bnf.fr/ark:/12148/cb366307285.
Full textPicod, Nathalie. "La caution dans les procédures de traitement des difficultés des entreprises /." Aix-en-Provence : Presses universitaires d'Aix-Marseille, 2008. http://catalogue.bnf.fr/ark:/12148/cb41273488g.
Full textMazeaud, Vincent. "L'obligation de couverture." Paris 1, 2009. http://www.theses.fr/2009PA010278.
Full textChemain, Jean-François. "Le cautionnement dans le monde romain du IIe siècle av. J.-C. au Ier siècle ap. J.-C." Thesis, Paris 4, 2012. http://www.theses.fr/2012PA040037.
Full textJean-François Chemain's thesis carries " the caution money in the Roman world of the IIth century BC in Ier century AD ". It was led from literary, legal and epigraphic sources. In his first part, the author studies the actors of the caution money (guarantors and guarantee) at the end of the Republic: the relations that they maintained some with the others, the social category to which they belonged, the motives which they had to stand surety, and the strategies which it could hide. In the second part, he asks the questionof the 5 leges de sponsu (lex Publilia, lex Appuleia, lex Furia, lex Cicereia, lex Cornelia), trying, from their own logic, to reconstitute the objectives of the legislator and therefore, to date them. And so he places the first one in a " long second century BC " Maybe at the time of Gracques, and the four last ones between 67 and 47 BC The third part of the thesis is dedicated to the future of the caution money at the beginning of the Princedom, marked by a visible attempt to frame( it (appearance of the fideiussio) and to limit its usage (preference for the real guarantees, the limitation of the opportunities to guarantee). In the fourth part, finally, Jean-François Chemain puts evidence that the caution money is a good marker of the main evolutions of the Roman society at the time of the "Passage"
Cottet, Marion. "Essai critique sur la théorie de l'accessoire en droit privé." Thesis, Paris 11, 2011. http://www.theses.fr/2011PA111029.
Full textThe accessoire theory is used in French private law in an inconsistent way, due to its multiple applications. Therefore, it was necessary to study this theory and try to give it back some consistency so that it could be used predictably. In order to do that, we tried to identify the rules that are hiding behind the accessoire theory. We came to the conclusion that this theory should not be used to explain the mechanism of accession nor the dependence of the accessoire to the principal, especially in security law. We also brought to light the latent existence of a notion which is able to explain the accessoire theory in most of its applications, that is, the notion of function. This notion, which would allow judges to introduce the economic analysis into their reasoning, designates how a contract or a clause or an obligation contributes to achieve a certain economic result. If it was implemented in positive law, this notion of function could replace the accessoire theory in its normative role, which is to make the accessoire disappear along with the principal. The accessoire theory could then be confined to its preservative role, which is to maintain the link between the accessoire and the principal, in other words, to allow the accessoire to fulfil its function beside the principal. It appears thus that the accessoire theory can be renewed in a consistent way thanks to the notion of function. While carrying out such a renewal, we suggested to include personal burdens into the scope of the notion of accessoire, so that burdens responding to certain criteria can be transferred along, as accessories, with a property, as principal
Barsallo, Vanessa. "Le droit de propriété comme garantie non traditionnelle du crédit bancaire au Panama et en France." Paris 2, 1994. http://www.theses.fr/1994PA020058.
Full textThis thesis involves a study of the role of property as a guarantes of bank credit in panama and in france. We will see the differentes techniques by which property has a role of guarantes in bank credit. This study consists of two parts. In part one, we shall discuss the transfer of property as a guarantes : the transfer of credits as a guarantes and the trust. In the second part, we shall examine the reserve of property as a guarantes as the leasing and the conditional sale
Hadj, Khalifa Amor. "La promesse de porte-fort." Aix-Marseille 3, 1997. http://www.theses.fr/1997AIX32020.
Full textThe promise of the "porte-fort" stated by the article 1120 of the civil code, is the engagement towards the stipulant to obtain the consent of the third party. The contractant concludes a contract on behalf of a third without having the power of doing it in the first place. He himself promises that a third will take the engagement. The promise of the "porte-fort" appears in the accomplishement of legal facts and legal transactions. It is not submitted to any special form. While interpreting the promise, the judge has the power to give back to the contract its real judicial qualification without having to follow the qualifications suggested by the parties. The approval is the act whereby the third lets know that the wants to make the contract that had been concluded in this behalf by the contractant. The contractant is therefore freed. He garantees only the approval, but not the execution of the fact, and that is because he is not "caution". The third becames then directly engaged tomards the stipulant. The approval has a retroactive action since the day where the promise of the "porte-fort" has been made. The lack of approval binds the liability out of contract of the contractant towards the stipulant. The promise of the "porte-fort" is not considered a promise for others. The third is not bound if he did not give his consent. The promise of the "porte-fort" is not a derogation to the principle of the relatif effect of contracts stated by the article 1165 of the civil code. The promise of the "porte-fort" is different from other close notions such as business management, "l'enrichissement sans cause", representation, mandat, provision in favour of the third party, shipping contract of goods and collective labour agreement. It has its own characteristics that give it a proper judicial nature. It is a unique and independant notion. This uniqueness and independance are reflected in corporation law, "safety law", comparative law and lege ferenda
Mottet, Adeline. "La Caution personne physique." Chambéry, 2005. http://www.theses.fr/2005CHAML020.
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