Dissertations / Theses on the topic 'Droit du cautionnement'
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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?
Zio, 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
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
Chieudji, 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
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 textKouacou, Agaman Cyprien. "La portée du caractère accessoire du cautionnement." Nice, 1985. http://www.theses.fr/1985NICE0002.
Full textRebibou, Philippe David. "Le cautionnement consenti par une personne mariée." Nice, 1996. http://www.theses.fr/1996NICE0022.
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 textBourassin, 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
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
Legeais, Dominique. "Les Garanties conventionnelles sur créances /." Paris : Economica, 1986. http://catalogue.bnf.fr/ark:/12148/cb366307285.
Full textCabrillac, Séverine. "Les garanties financières professionnelles." Montpellier 1, 2000. http://www.theses.fr/2000MON10002.
Full textDiop, Magatte. "Le contrat de cautionnement donné par le chef d'entreprise en droit français et en droit sénégalais." Thesis, Perpignan, 2019. http://www.theses.fr/2019PERP0015.
Full textIn the worldwide of business and mainly for the little companies, It’s not seldom to make loans nearby of the bank. But the weakness of the garantees what represent the social capital bring sometimes the etablishment of loan to subordinate the granting of this credit to the society to obtaining personal garantees of the head of the company. So, it’s frequent to see the head of company giving their commitment nearby a creditor to honor the social debts on the company’s assets in case where the society couldn’t satisfy his own obligations. The contract of the deposit hold a place of choice in french law and OHADA law due to of his simplicity and flexibility. However most of rules made recently in favor of deposit have a tend to put in jeopardize this institution. The creditor are more and more reluctant to grant a loan due to of excessive protection whose they bénéfit. In addition, the situation of the deposit can be evolve until make him lose him first statut. The creditor society or the debtor can be affected more or less by various circumstances. These circumstances must be taken into account and have a result on the deposit contract, mainly on the commitment of the deposit. In order to solve the fear of the creditors, we will have to find a balance between the interests of the deposit and the creditors, but also to frame the access to function of the head of company in putting in place to their disposal any specific training in the field of finance and management because « ain’t a head of company who want »
Hontebeyrie, Antoine. "Le fondement de l'obligation solidaire en droit privé français." Paris 1, 2002. http://www.theses.fr/2002PA010291.
Full textPrüm, André. "L'autonomie des garanties à première demande." Montpellier 1, 1992. http://www.theses.fr/1992MON10006.
Full textThe study analyses the independance of guarantees on first demand under french and comparative law. This new type of guarantee has been thought out by the operators of international trade and is promised today a large development. The papers describes the multiple applications for which independant guarantees bonds or stand-by letters of credit are used. The basis, the source and the various expressions of the autonomy of the guarantees are examinated. The mechanism of counter-guarantees, sydicated engagements, and other pools of guarantees are also studied. A detailed analyses is proposed on the regime implied by the independance of the guarantees and the consequences of such independance from the underlying transactions. The limits of the autonomy of the guarantees are defined and the circumstances under which the payment called for the beneficiary may be refused
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 textOury-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 textCottet, 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
Oualji, 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
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
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 textAkue, Mickala Alain. "La situation de la caution en droit des procédures collectives au regard de la règle de l'accessoire : Etude comparative droit français/droit OHADA." Electronic Thesis or Diss., Toulon, 2019. http://bu.univ-tln.fr/userfiles/file/intranet/travuniv/theses/droit/2019/2019_AKUE_MICKALA_Alain.pdf.
Full textSince the introduction of the law n° 94-475 on 10 January 1994, the French legislator bas been part of a process of protection, while still interested, of the bail leader with the aim of promoting the recovery of the debtor in difficulty. This process, which culminated in the 2005 reform, had an influence on the law of collective procedures applicable in the OHADA area, not without striking the balance of the bonding institution as a whole. Since the reform of the AUC on 10 September 2016, OHADA law bas adopted the same regime for processing the bail of the debtor in difficulty as the French legislator. It consists in promoting the fate of the surety by exploiting its situation as long as the hope of saving the debtor in difficulty really remains. This includes a targeted application of the accessory rule in different stages of the procedure according to a common thread almost identically defined by each legislator, yet in a different legal and social environment. The impact of this aradox on the efficient rotection of the suret is felt in the application of measures of collective discipline to the surety on the one band, and the exercise of the bail on the other
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
Agbenoto, Koffi Mawunyo. "Le cautionnement à l’épreuve des procédures collectives." Le Mans, 2008. http://cyberdoc.univ-lemans.fr/theses/2008/2008LEMA2003.pdf.
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 textSedalo, 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
Mazeaud, Vincent. "L'obligation de couverture." Paris 1, 2009. http://www.theses.fr/2009PA010278.
Full textMontegut, Delphine. "Notion et régime de l'ouverture de crédit." Nice, 2001. http://www.theses.fr/2001NICE0032.
Full textKakaly, Jean-Didier Yodé. "L'affectation de comptes bancaises en garantie d'une dette." Toulouse 1, 2010. http://www.theses.fr/2010TOU10055.
Full textAssign a bank account as security for a debt is a common pratice in banking circles of the ODAHA law. This raises the question of in what capacity the bank account is charged. The study should be conducted in two directions : first, the legal nature of this mechanism, then its legal regime. The legal nature is diverse, which leads to the selection of the escrow account as an alternative to unification. The pledge of security interest is necessarily the bank account, it comes as a pledge of assets (in case the account is not blocked) and a pledge of escrow account (if the account is held). This distinction controls the legal regime of the pledge of bank accounts. On the system of pledge of receivables, the analysis reveals that some of his solutions are inadequate bank account and proposes reforms. On the system of guarantee of a blocked account, the author of the thesis in its calls for urgent statutory recognition in the OHADA law
Lignières, Paul. "Les cautionnements et garanties d'emprunt donnés par les collectivités locales." Montpellier 1, 1993. http://www.theses.fr/1993MON10011.
Full textThe grant of loan guarantees by local authorities raises the question of the influence of one particular party on the contract. Only the consent of the local authority should be submitted to particular rules which reflect the specificity of the local authority. The framework of consent is limited by the right of decentralisation and, the internal and european community rights of competition. The decision making process ("deliberation") is the essential part of consent by the local authority. This process is subject to public law. This specific law must not, however, be extended to the whole contract. For the rest of the contract, private law must be applied in principle. For this reason, thedistinction between the contract of "cautionnement" (which is a guarantee subject to the "code civil") and the contract of "garantie autonome" (a guarantee independent of the "code civil") is not specific to this subject. This study shows that it is necessary to discern in a legal rgime, which is apparently a combination of public and private law. Matters related to public and private law
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
Prigent, Stéphane. "L'engagement pour autrui." Rennes 1, 2001. http://www.theses.fr/2001REN10402.
Full textLogoz, François. "La protection de l'exportateur face à l'appel abusif à une garantie bancaire : étude comparative des droits allemand, français, belge et suisse /." Genève : [Paris] : Librairie Droz ; [diff. Champion], 1991. http://catalogue.bnf.fr/ark:/12148/cb366555105.
Full textHouin-Bressand, Caroline. "Les contre-garanties." Paris 2, 2004. http://buadistant.univ-angers.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D5442%26nu%3D94.
Full textDevelioǧlu, Hüseyin Murat. "Les garanties indépendantes examinées à la lumière des règles relatives au cautionnement : étude de droit suisse et de droit turc /." Berne : Stämpfli, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/507925645.pdf.
Full textTridi, Amine. "Les garanties bancaires dans le commerce international." Paris 10, 1991. http://www.theses.fr/1991PA100008.
Full textBonds, quarantees and letters of credit in the international trade are concerned by this study which try to have a general view about the practice over the world, with appreciation about the justice decisions on the subject
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
Mégret, Géraud. "Les recours du garant : contribution à l'étude du cautionnement et de la garantie autonome en droit interne." Paris 1, 2009. http://www.theses.fr/2009PA010333.
Full textNetter, 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
Koffi, Affoué Marie-Noël. "Réflexions pour un renouveau du droit des sûretés personnelles." Thesis, Lyon, 2019. http://www.theses.fr/2019LYSES060.
Full textTraditionally considered as a unilateral contract, a bond requires the guarantor to perform a service. However, in order to protect the guarantor, considered as a weak party when it contracts with a professional creditor, the legislator has, over the years, through various reforms, imposed obligations on the creditor receiving a guarantee. While these new creditor constraints have created an imbalance between the protection of the parties, the resulting ad hoc reforms, without an overall vision, have undermined the readability and harmonisation of the subject matter and constitute an obstacle to legal certainty and the purpose of security. To this must be added the particular nature of the bond, in this case, its accessory nature, which raises enforcement difficulties. These imperfections of the model security have led to the practice of developing new personal securities considered as substitutes for suretyship and using mechanisms of the law of obligations for security purposes. However, the multiplication of personal securities creates a risk of competition between them and hinders the rationalisation of the matter. Therefore, it is necessary to rethink the law of personal securities. This study proposes a new security model (the hybrid personal security) with a legal regime borrowed in part from the guarantee and first-demand guarantee, oriented towards a unitary approach to personal securities guaranteeing payment commitments
Multrier-Trébulle, Agnès. "La notion de subordination de créance." Paris 2, 2002. http://www.theses.fr/2002PA020048.
Full textMoghames, Michel. "Recherches sur l'engagement bancaire autonome en droit français et en droit comparé." Aix-Marseille 3, 1987. http://www.theses.fr/1987AIX32012.
Full textInternational trade has reached heights unforeseen in the past : the banks represent the nerve centres of contemporary society. Their intervention on the international market is of paramount importance; representiny an appreciable security for transactions because competition is strong and business partners often far away. Therefare autonomous banking commitments are weapons that cannot be parried; they are becoming a vital part of standard banking procedures. The attraction of these commitments is that they are of this day and age. Though financial exchange dates back to roman law, dowmentary credit, credit cards and independent guarantees are for different. They are autonomous. Their execution does not depend on the execution of the main contract, they must in all cases be handled without obvious fraud or misuse in law. They are abstract, but momentarity detached from their cause until the contract is carried out. This abstraction is more or less controvered according to country, german law is favourable, whereas latin law contests this abstraction. If the guarantee is called up, the garnishee order, the emergency interim proceedinys and the receining order are often defended, so as not to immobilize the automatic nature of these commitments. Only downright fraud and breach of trost legal are exceptions
Rajab, Amr. "La pratique de la garantie indépendante en Arabie Saoudite : étude comparée au droit français." Nancy 2, 1994. http://www.theses.fr/1994NAN20012.
Full textThe autonomous nature of the guarantor's engagement constitutes in the independent guarantee, a golden rule which favours its practice in Saudi Arabia. By opposition to the secondary nature of guarantor's commitment in the cautionnement, the guarantor has the obligation to pay the total amount of the guarantee as soon as the beneficiary requires it and he cannot put forward any argument or refusal derived from the underlying relationship. The independent guarantee fulfilled the function of deposit of money which creditors have given up remission because of its anti-economic nature. The practice of independent guarantee in Saudi Arabia is marked by the evolution of this kind of engagement which has changed from a conditional guarantee to an unconditional first demand guarantee. This evolution is essentially linked to the contributions of the Saudi central bank, SAMA (Saudi Arabian monetary agency) which has intervened many times, in accordance with its statutory power, in order to organize the relationship between the parties in the guarantee operation. Relying on saudian decisions in this matter, our study consists in deepening the features of the guarantee as it is applied in Saudi Arabia and in comparing the retained solutions with those of the common law every time it is opportune
Brune-Jammes, Céline. "L'incidence de l'activité professionnelle sur le couple du chef d'entreprise." Thesis, Toulouse 1, 2016. http://www.theses.fr/2016TOU10062/document.
Full textLe résumé en anglais n'a pas été fourni par l'auteur
Chemain, 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"
Djimasna, N'Doningar. "Réflexions sur l'efficacité des sûretés personnelles dans le droit uniforme issu du traité de l'O. H. A. D. A." Orléans, 2004. http://www.theses.fr/2004ORLE0001.
Full textCassamally, Zeenat Bibi. "L'influence respective de la "Civil Law" et de la "Common Law" en droit mauricien des sûretés." Paris 1, 2012. http://www.theses.fr/2012PA010309.
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