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Definitions

gratuitous contract

one party seeks to provide an advantage to another without waiting for any compensation or reciprocity, she has a selfless purpose.

Agreement for consideration:

Each party agrees that extends receive consideration.


Agreement Random

is a reciprocal agreement with Article 1946 of the Code provides civilnous effects, as to the benefit and loss is for all parties, either one of a partiedépendent uncertain event.

Contract OTC:

It must follow from the parties freely discussed. It conidère that the parties are placed on equal footing in determining their commitments.

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The breach of contract.

this case study relates to contract law and more specifically to the breach of contract.

FACTS: The sucursalle of Mr. LOSEILLE endomagée was badly he could not deliver his client PULLMAILLE society, the latter has the dc source also undergoing a significant additional cost and it wants the company of Mr. LOSEILLE more plastic supports. It would unilaterally withdraw
its contract with more plastic.

Problematic indeed : Mr. LOSEILLE How could he avoid PULLMAILLE indemnify the company?
How can he maintain the contract between his company PULLMAILLE?

Article 1147: The debtor is condemned, if any payment of damages or by reason of breach of contract either on account of delay in execution, whenever it does not justify that failure comes from an external cause that can not be imputed, even though there was no bad faith on his part.
Article 1184: The conditions subsequent is always implied in contracts synalagmatique for the case that one party will satisfy both point to his involvement in this case the contract is not automatically canceled. the party to whom the undertaking has not been executed, a choice or force the other to perform the agreement when possible, or to request termination with damages. the resolution must be made to the court and may grant the defendant a period depending on circumstances.

law Problem: The cause that led to the breach of contract is it has a foreign RESPONSIBILITIES contract? MORE PLASTIC
The company is it in the circumstances foreseen in article 1184 PULLMAILLE end that demand resolution of unilateral contract?

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The purpose / cause

It is in this exercise to answer some questions that appeal to the object and the cause :

What is the contract?

The purpose of the contract is one of four conditions laid down by Article 1108 of the Civil Code which provides that a contract is validly formed. It means
Juriques operation that allows for the contract.
ex: In a Conrat selling the contract is sale.

What is the purpose of the obligation?

is the service promised by the debtor (give, do or not do), it must exist, or be détreminée détreminable, possible, lawful or consistent with good manners.
eg the object of the obligation of the seller is transferring the ownership of the thing and that the buyer is the transfer price.

What is the purpose of the provision?

Good question by the obligation.
eg in a sales contract under the provision is the right thing for sale.

What is the cause impulsive?

We talk about cause and determining when impulsively seeks to investigate the subjective cause, the personal reasons that prompted the party to contract solely because the cause is crucial implulsice contract.

What cauuse of the obligation?

is the immediate objective s party (in abstracto analysis), we consider in this case the cause is always the same for each type of contract.
eg in a sales contract because the obligation of the seller is still paying the price, the cause of the obligation of the buyer is always the transfer of ownership.
Thus, when the benefit-cons not be executed, the contract can be canceled for lack of cause.

What is the cause of the contract?

is all personal mobile which led the party to enter into this question must be lawful.

The sanction of the cause is always the void?

partial absence of the facts does not invalidate the contract but its revision; When the cause is distorted in an act disimmulée apparent the true cause is hidden if it is legal there will be no cancellation of the contract .

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Contract formation: the consent intégité

1) Resolution of practical case

This practice is the ace on contract law and specifically the formation of the contract:
FACT: Maite has achetéun table supposed to be the work of ducklings. By that account Redant tabeau was not that she had seen with her grandmother, she hoped that the antique dealer to take over.

PB OF FACT: Which means she has to destroy this contract?

Maite who believed AoIR bought a painting by ducklings when he is not one, it was clearly at errerur buying this table.

PB LAW: Will it invoke the nullity of sale for error on the essential qualities of the thing?
To do so, Maite must prove that the allocation of table ducklings to the painter has determined its consent so that it would not have incurred if it had known that such capacity existed at the time of contract formation.

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FORMATION OF CONTRACT: THE INTEGRITY OF CONSENT

I ° RESOLUTION OF PRACTICAL



this case study relates to contract law and specifically the formation of the contract.


Summary of Facts: Maite
bought a painting believed to be the work of painter ducklings
Realizing that the painting was not that she had seen with her grandmother, she hoped that the antiquary reprenne.Par Furthermore it turned out later that he was not a picture of the famous artist. Problem

actually:
What means she has to destroy this sale? Maite
who thought he had bought a painting by ducklings when he is not one has clearly seen her consent vitiated.

The 3 cases of defects of consent under the civil code are violence, fraud and error. Nothing
leaving us assumed that there was a mistake that we will discard it hypothèse.Quand to fraud involves the use of maneuvers designed to encourage the contractor to contract and without which it would not have done it can also be in silence. This is known as fraudulent concealment. The seller would he have failed to clarify the existing doubts when the true identity of the author of the work? Nothing we are clear on this side we will discard this hypothèse.L error therefore seems the most appropriate route.

Legal Issue: Maite
she could invoke the nullity of the sale for erreuret specifically on the qualities of something substancial (here's authenticity)?

Terms and conditions: To be
Maite must prove that the award of the painter table ducklings to determine its consent so that it would not have entered had it known that this quality existed at the time of contract formation.
But it will still only on proof that the contractor knew that quality was crucial and that it was originally defined as such by the parties.

Confrontation rule to the facts:
In this case we noted that Maite bought this table in the name of his childhood memories. This criterion seems to have been the decisive factor as it is in realizing that Table was not that she had seen at her grandmother that she has decided to reconsider the sale.
Moreover even if the table was purchased from its author the term "assigned" is not any certainty and thus leaves room for doubt or error hazard hunt!

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presentation

hello everybody, this blog is for students wishing to deepen their L2 knowledge in contract law exams approach.
This blog's mission: to summarize
-explanatory tutorial 4 records
-upload the last part
-upload a sample exam give
-full of tips to practice before and during the examination.
Hoping that this blog will be useful, I invite you to read every article that I think have their usefulness to provide practical work in a perspective of understanding of contract law as well as the successful completion of a final examination.

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Duty on 17 November 2007 table

These are the questions we have answered on duty at the table.

1. What does the notion of a letter of intent?
2. Confront mechanisms with independent guarantees that the contract of guarantee.
3. What do you think the following statement: "The bond is a unilateral contract?
4. What are the defenses of the surety to the creditor? The deposit
5. solvens she has recourse against the principal debtor?
6. What is the meaning and scope of the concept of proportionality in bond?

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TDn 4 5

Write a review compared the judgments of the Commercial Chamber of the Court of Appeals dated 21 decembre1987 company Tolra v. SODLER and the decision dated June2006 DU7 society and Devilettes Chissadon c / Sanpaolo bank

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TDn Trust

The TD does not deal with personal safety, however it is brought to you because it deals with a new law on security interests, which may interest some of our readers. You will find below the first chapter of the law establishing the trust.

general provisions of the trust

the trust was established by ACT No. 2007-211 of 19 February 2007

Art. 2011 of the Civil Code.

"The trust is an operation whereby one or more components transfer property, rights or sureties, or set of assets, rights or sureties, present or future, to one or more trustees who, having separated from their own patrimony, act for a specific purpose for the benefit of one or more beneficiaries. "

Art. 2012.

- The trust is established by law or contract. It must be express.

Art. 2013.

- The trust agreement is void if it makes a donative intent to the beneficiary. This is a public policy void.

Art. 2014.

- Only constituents can be legal persons subject of right or option to tax on corporations. The grantor's rights under the trust are not transmitted for free, non-transferable for value to persons other than corporations subject to corporation tax.

Art. 2015.

- Only can trust the quality of credit institutions mentioned in Article L. 511-1 of the Monetary and Financial institutions and services listed in Article L. 518-1 of the Code, the investment firms referred to in Article L. 531-4 of the Code and insurance companies governed by Article L. 310-1 insurance code.

Art. 2016.

- The settlor or trustee may be the beneficiary or a beneficiary of the trust agreement.

Art. 2017.

- Except as otherwise provided in the trust agreement, the purchaser may, at any time designate a third party to ensure the preservation of its interests under the contract and may have the powers granted by law to the grantor.

Art. 2018.

- The trust agreement determines penalty of nullity:

"1 The property, rights or securities transferred. If they are the future, they must be determinable;

"2 The duration of the transfer, which may not exceed thirty-three years after signing the contract;

" 3 The identity of the constituents;

"4 The identity of the trustees;

" 5 The identity of the beneficiaries or, failing that, the rules for their designation;

"6 The mission of the trustee and the their powers of administration and disposition.

Art. 2019.

- To be valid, the trust agreement and its addenda are registered within one month from the date the tax department headquarters of the Trustee or to the tax non-residents if the trustee is not resident in France.

"When they are on real estate or real property rights, they are under the same penalty, published in accordance with Articles 647 and 657 of the General Tax Code.

"The transmission of rights under the trust agreement and, if the beneficiary is not designated in the trust agreement, his subsequent appointment shall, on pain of nullity, giving rise to a written instrument recorded in the same conditions.

Art. 2020.

- A national register of trusts is made according to procedures specified by Order in Council of State.

Art. 2021.

- When the trustee acts on behalf of the trust, it must be stated explicitly.

"Similarly, when the trust estate includes property or rights that the mutation is subject to publicity, it should be mentioned the name of the trustee in that capacity.

Art. 2022.

- The Trust Agreement defines the conditions under which the trustee shall report on his mission to the grantor. The Trustee shall report on his mission to the beneficiary and the third party designated pursuant to section 2017, upon request, at intervals determined by the contract.

Art. 2023.

- In its dealings with third parties, the trustee is deemed to have the broadest powers in the trust estate, unless it is shown that third parties were aware of the limitation of its powers.

Art. 2024.

- Opening a backup procedure, receivership or liquidation for the benefit of the trustee does not affect the trust estate.

Art. 2025.

- Without prejudice to the rights of creditors of the grantor hold a resale right attached to a security previously issued to the trust agreement and out fraud on the rights of creditors of the grantor, the trust estate can be seized only by holders of claims arising from the conservation or management of such heritage.

"In case of failure Heritage Trust, the assets of the grantor is the common pledge of creditors, except as otherwise provided in the trust agreement involving all or part of the liability borne by the trustee.

"The trust agreement may also limit the fiduciary obligation as a liability on the sole fiduciary property. Such a clause is binding only creditors who have expressly agreed.

Art. 2026.

- The trustee is responsible, on its own assets, for torts committed in carrying out its mission.

Art. 2027.

- If the fiduciary breach of duty or endangers interest entrusted to the settlor, the beneficiary or third party designated under Article 2017 may petition the court for the appointment of a provisional trustee or trustee to apply for replacement. The court decision granting the request shall automatically entail the divestiture trustee.

Art. 2028.

- The trust agreement may be revoked by the grantor until it has been accepted by the recipient.

"After acceptance by the beneficiary, the contract can not be modified or revoked without the agreement or decision justice.

Art. 2029.

- The trust agreement is terminated by the occurrence of the term, the achievement of purpose when it takes place before the expiry or revocation by the grantor of the option to tax companies.

"It also automatically terminate if the contract so provides or, failing that, by a court, whether in the absence of provisions prescribing the conditions under which the contract continues, the beneficiary waives all the trust. This applies even if the trustee is the subject of a liquidation or dissolution, or disappears as a result of an assignment or removal.

Art. 2030.

- When the trust agreement expires in the absence of a beneficiary, the rights, property or securities present in the trust estate are automatically returned to the grantor.

Art. 2031.

- In case of dissolution of the constituent, when the beneficiaries are not legal entities subject to corporation tax, the trust estate can be attributed to these beneficiaries in the capacity before the date the contract trust terminates. In this situation, the rights of holders entitlement under the trust shall not be transferable to inter vivos or transferable for value. "

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The effects of independent guarantee

To determine the effects of the independent guarantee we must address the implementation of the guarantee, the consequences of paying and extinction.

1. The implementation of the warranty: It section 2321 of the Civil Code which provides hypothéses.Elles There are 2. In the first case, the beneficiary of the security did not justify the involvement of garantie.Dans the second hypothesis, the independence from the base contract is mitigated by the introduction a suspicion of accessory. And the guarantor on request of the recipient must immediately pay the amount of the sum stipulated in the letter issued. The only case in which the guarantor may withhold payment is when the absence of a beneficiary's right appears.
2. The consequences of paying : if he pays the amount due, the guarantor may be indemnified by the principal (Principal). When the bank-guarantor cons settled the amount of security can be turned against his client by debiting the payer's account of the amount paid.
3. Extinction: The warranty goes out by the causes common law. CK.
   

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The concept of bond

Definition:

The bond is personal security and like all security is governed by the Civil Code .

Article 2287-1
"the personal security governed by this title are the bond, guarantee an autonomous and the letter of intent"

The notion of "security" admits two definitions:

- sometimes it means the money deposited in trust in the hands of a creditor as security for his claim
- sometimes the contract under which a person undertakes to secure another's debt.

The security in general

The bond is average for a creditor to increase its chances of being paid by multiplying its expense on the debt itself.

the guarantee contract is a unilateral contract because no burden on the creditor.



operation bail

The security operation is added to an initial obligation called "primary obligation " another called secondary obligation "Secondary obligation" which will replace the first if the first fails.

primary obligation is that of a person who has to commit to a creditor to provide any benefit is called "principal", which will be has added the obligation of another person called bond " which aims to guarantee the performance of the principal obligation to the creditor if the debtor is found primarily in the inability to do so himself.

The primary obligation is binding on the creditor and the principal debtor, while the secondary obligation binds only the principal debtor to the surety.

Article 2288

"he who makes a surety bond is submitted to the creditor to satisfy this requirement if the debtor fails to fulfill it himself."

the content of the duty

- the content of the duty on it may relate to a debt or ascertainable.

is a guarantee that the amount is fixed from the outset the security know in advance the maximum amount that it may have to pay or the factors of debt is known as the origin.

- it may also include a debt that is unknown to say that the guarantor undertakes to pay a debt she did not know in advance.

the character of the bond

- the bond can be Single or severally:

we talk about security when single engagement of the bond is executed only if the principal debtor's default risk (and it has the benefit of discussion and division of profit)

we talk about when the surety bond is placed in the same way as the principal debtor and the creditor may well address both the principal debtor's surety.

-the guarantee may be civil or commercial principle is that the guarantee contract is a civil contract nonetheless during the commitment the bond is a debt on the commercial contract is trading

conditions of a contract of suretyship

the guarantee contract is subject to the same title all other contract terms of substance. they are common to all contracts and are governed by section 1108 of the Civil Code.

Article 1108

"four conditions which are essential for the validity of an agreement:
-consent the obligated party
-ability to incur
-a certain object which forms the subject of commitment
-cause lawful obligation. "

Other conditions are in addition to the above rules that are specific to that bond:

- the bond must be solvent (the creditor not to subscribe to the bond contract on a debt too excessive )

Article 2296

"The solvency of a bond does not consider that in view of his land, except in matters of trade, or when debt is low. It has no relation to real property at issue, or that the discussion would become too difficult by the remoteness of their situation. "




Article 341-4 of the Consumer Code

"A creditor may not invoke professional contract of guarantee entered into by an individual whose appointment was at its conclusion, clearly disproportionate to his income and assets unless that the heritage of the bond, when it is called, only allows it to cope with its obligation "

the formal requirements of the guarantee contract


Formalism jurisprudential

From 1982 to 1989, to protect the sureties, the Court of Cassation has erected some rules of evidence in condition for the validity of the bond.

For the security is valid, the bond must be affixed to the bottom of the deed a

statement specifying the exact extent of his commitment.

Nevertheless many cancellations were made on this basis.

Thus the doctrine has strongly challenged this principle.

a reversal of precedent that has issued the guarantee would simply become irregular and not void.

Since the requirements for handwritten revert rules evidence and guarantees are not free of bad faith with their commitment by invoking the principle mentioned above.

legal formalism

Some formal requirements are needed or because the quality of the bond is due to the nature of the guaranteed debt .

Deposits made by individuals.

The Act of August 1, 2003 submitted the guarantees given by individuals formalism required ad validitatem "and failure to comply with formal requirements is sanctioned by invalidity of the contract.

Article L 341-2 of the Consumer Code

Any person who commits, by private act as guarantor, to a creditor professional must on pain of nullity of his commitment to preface his signature contained in the handwritten text and only the latter :

"When I on bail of X. .., in the Limited the sum of the covering ... payment of principal, interest and, if necessary, penalties or interest for late payment and for the duration of ... I pledge to repay the lender the amount due on my income and assets if X. .. do not satisfy itself. "

it should be noted that the security of certain debts were already subject to rules of form required for validity, before 2003.The bonds of certain debts .

Two types of bonds are subject to their validity, especially formalism:

-bond of an operation of consumer credit

-and security for the obligations arising from a lease in other cases, the formal rules are especially needed to prove the bond.

forms required ad probationem.

The proof of the existence of the bond.

According to section 1315 of the Civil Code which requires that the performance of an obligation must prove it.

The creditor must prove that the defendant was well and that surety bonds guaranteeing payment of the principal debtor.

The evidence must be written.

The proof of the existence of the bond does not, in general difficulté.mais unlike its extent can the subject of dispute.

The evidence of the extent of the bond.

* Proof of bonds before the Act of August 1, 2003.

There are two hypotheses:

-bond of the deed (written established by a notary public)

In this case the creditor may properly rely on the note written by a professional to determine the extent of the commitment of the caution.l deed, is until false registration.

-bond formed by the private document (drafted by the parties in writing)

its probative value depends on the fulfillment of two conditions:

one hand, the signature of the bond, and secondly, the words written guarantee of the sum or amount in words and figures she will pay.

The content of the handwritten attracted abundant litigation.

For bonds not encrypted, it is not always possible detailing the secured bonds.

The judge has, in this case, a power of interpretation (Cass.civ.1, July 10, 2002) If the statement is incomplete, the unlawful act be worth as prima facie evidence by

writing.

Article 2293

"undefined The security of a principal obligation extends to all the accessories of the debt, even at the expense of the first application, and everyone after the denunciation is made to the Guarantee ".

* Proof of bonds after the Act of August 1, 2003.

Evidence has been facilitated because the handwriting is required at the penalty nullité.Pour guarantees individuals, evidence of the extent of the security only arises for the deposits are not subject to any rules of form for their validity is to say bonds underwritten by corporations .

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Continued creditor Conditions

order for the creditor to continue the bond, it is necessary that the principal debt is due.
The chargeability of the principal obligation may be modified. In this case, we talk about an extension or limitation.
The creditor can not sue the surety for the debts covered by the bond and to the amount of commitment. Thus, the creditor can not deprive the guarantor of a minimum of resources.

- The determination of liabilities covered by the surety : we must make a distinctness:
. e L bond debt determined: the deposit limit the scope of its commitment to guaranteeing the payment of a or more debts determined
. L e bond of all debts debtor: the deposit guarantee all debts of the debtor present Età come without any limitation as to amount.

- The determination of the amount of debt covered by the surety : we must distinguish between principal and accessory:
. The main : the bond entered into a commitment chiffrée.Cette inspcription limit must be made in letters and numbers.
. Accessories : the deposit is required in addition to the principal, accessory debt that may be of interest on the obligation of damages ....

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Proceedings of the creditor: Terms of Appeals

There are common rules and specific rules.

Common rules : the creditor must give notice to the surety to pay as soon as the impossibility of payment of the principal debtor is found.
The creditor also has a judicial proceeding against the surety to perform an execution if the bond fails to fulfill its commitment.

specific rules : rules are specific to the type of bond

• The prosecution in the case of single bond : In this case, the bond has two powers:

-profit discussion: Right granted to the bond against which enforcement of the creditor to require that the properties are of primary débituer first discussed, then seized and sold.

-profit division: Possibility for the simple guarantee, where several guarantors guarantee the same debt, require the creditor to divide its prior action and reduced the share dechacune of them.

• The prosecution in the case of joint guarantee : There are three scenarios to consider:

-Proceedings in case of ordinary bond secured: In this case, the surety is denied the benefit of discussion. Thus, the creditor can sue in his own way the principal debtor or surety.

-Pursuing a plurality of surety them: In this case, the bonds are subject to a duty to provide information to other securities and a duty of loyalty.

-Continued surety with the principal debtor: In this case, there is a presumption of solidarity between sureties when several people vouch integrally of the same debtor for the same debt.

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guarantor against the principal debtor

These remedies provided for by Article 2305 of civil code for personal use and 2306 for subrogation, the surety can recover lesscommes it paid for the debtor.

• Use personal : the surety can sue the debtor to recover not only the sum paid to the creditor but also all interest and expenses.
• The subrogation : the guarantor of the debtor may claim the amount he owed and that the bond paid the creditor by putting himself in place of the latter. The deposit gets all the rights that the creditor had against the debtor to know the preferences, and personal security interests and other rights préférenciels.Dans this case, the bond can not ask the debtor to repay what plsu he owed to the creditor.

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The remedies of the co-surety bond cons

These remedies are exercised lorqui several people pledged to the creditor and one of the sureties was seized. This deposit
then has recourse against the other sureties who may be either personal or subrogation.

• Personal Use: Section 2310 of the Civil Code, the surety who has paid the debt has recourse against the other sureties, each for itself and portion.Ce application seeks to support each sureties on his part and portion of the debt. However, four conditions are required to make this appeal:

-payment of the bond should exceed his share and portion propore

- Payment must be made as guarantor

-The deposit must be paid with funds from its own heritage

-Payment must be reached before any of the cases under section 2309 of the Civil Code

• The subrogation : the bond as the debtor has the appeal . In this case, it has all the security that the creditor might have against the other guarantors.

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A useful methodology and practice

We've posted the methodology of the practical case, the record of arrest or the case comment, the commentary and the comparative essay. We hope this will help you understand some of these points and then reread the méthodes.Et methodology of different exercises can be very helpful before exams!

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The concept of security

Under French law, the securities themselves as legal techniques to ensure the settlement of claims in case the debtor does not possess the goods of sufficient value to pay off all creditors. They therefore constitute guarantees of payment and aim to improve the situation of the creditor.

A security can be defined as an institution or mechanism that makes sure the relationship of obligation guaranteeing its execution .

Under section 2284 of the Civil Code "ANYONE personally obligated himself is bound to fulfill his commitment on all movable and immobliliers present and future." However, the debtor may find themselves insolvent. It is therefore for the creditor to protect against the risk of insolvency of the debtor using the techniques of security.

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The distinction between collateral and personal guarantees

Under French law, there are two types of collateral: the collateral and personal guarantees.

1. Collateral are to assign one or more properties belonging to the debtor as collateral for a bond (lien, pledge, mortgage)
   
2. As for personal guarantees, this is the third commitment to pay in lieu of the debtor if he fails (bond , independent guarantee, letter of intent).
   

It is the latter that we develop online.

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Case Study (TD n3)

Stépahane Isabelle and decided to create a society: Karu environment. To implement this activity, the bank Guadeloupe innovative youth (BGJI) awarded the company a loan of one million euros.

Melissa and Gaetan have both brought up joint guarantees repect of 700 000 euros and 1 million euro. Stéphane also surety to the tune of 300 000 euros.

The company grew quickly but has faced stiff concurence. Faced with declining profits of nearly 40%, karu environnemnt could no longer meet its enggements. Six maturities of the loan remained unpaid, the BGJI ordered the forfeiture of the loan contract and assigned Gaetan payment of the debt of the company which then amounted to 972 536.58 euros.

Gaetan had to pay the entire debt of Karu environment. The latter was put into liquidation.

1. Gaetan he has appealed against the two other bonds? If so, what amounts will pay him the two bonds?

2. How exercised this remedy if Stépahen found itself insolvent?

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The qualification of independent guarantee (ba)

• The mere reference in the guarantee contract basis sufficient to give a commitment to quality guarantee? Not since the future guarantor must demonstrate commitment since the Act of 1 August 2003 via a handwritten note.
  
• How to describe a commitment hybrid, for example, entitled "Declaration of guarantee", by which a guarantor is a "joint and several surety" while agreeing to pay "first demand and without raising any exception whatsoever"? .
  

The purpose of the guarantor's debt is then modeled on that of the debtor (without the first criterion), however, there is indeed a commitment to renounce all exceptions (presence of the second criterion).

• Guarantee self justified, in which the recipient must give reasons for its appeal as collateral should not she be reclassified as a bond?
  

jurisprudence has not considered the grounds that "the requirement of an application" justified ", which does not confer any right the guarantor to discuss its merits, not enough to prevent a finding of independent guarantee (Cass.com, July 12, 2005)

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Qualifying Guarantee autonomous

Whenever the act concluded is not clear, we hesitate on the choice of qualification opérer.En Indeed, we must a choice between security and the guarantee in some autonomous cas.Le judge is not bound qualification of the act formed by parties.Pour whether we are dealing with an independent guarantee the judge may take into account the quality of professional or layman's guarantor and if a layman, Judges are likely to qualify for the guarantee. (Cass.com January 30, 2001)

Qualifying Guarantee self requires the presence of two criteria:

• autonomy of the object: the object of guarantor's liability is not to settle the debts of others, but to pay what he asked the beneficiary of the guarantee. Is not a guarantee by the commitment to pay "what should the debtor." The unenforceability
  
• Exceptions: this second criterion is a consequence of the first, a commitment to pay its own debt, the guarantor may avail themselves of imperfections affecting the secured obligation.
  

In practice this second criterion is often deducted from the payment clause to the first request which is understood as the inability to use the exceptions belonging to the debtor.

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Accuracy on the concept of autonomous security

should know that the contractor is the principal who asked the foreign credit institution, the guarantor, to commit to the other party, the beneficiary, to pay a certain sum in If it would use the warranty.

In general, the foreign bank will agree to commit only if it, itself, covered by a guarantee by the bank of the payer's bank customer. This practice has won the French credit operators who have implemented in the reports that this practice seems internes.Il bank turns out to be a way to circumvent the legislative and jurisprudential movement protection guarantees.

The legislature has worked to ensure that the use of independent guarantee does not disadvantage the caution.Ainsi law of 26 July 2005 denatured by treating them as independent guarantees to the bond. In addition, the order of March 23, 2006 excluded the use of independent guarantees on consumer law and residential leases. Ck

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The concept of autonomous security guarantees

Guarantee self is defined in the Civil Code since the order of 23 March 2006.En Indeed, section 2321 of the Civil Code as "any obligation whereby the guarantor undertakes, in consideration of a bond underwritten by a third party to pay a sum to be the first application or on terms agreed. " It is necessary to specify that the guarantor's obligation is independent of the secured transaction and therefore characterized by unenforceability of exceptions from this operation. ("Collateral" Michel Farge) can be compared independent guarantees to bail because of commitments made by a third party as security for the debt of a principal debtor.

In international practice, one can count three types of guarantees:

1.la bid guarantee which ensures that the contractor will follow up on his offer;
2.la advance payment guarantee which allows the master the authority to obtain the refund of advance payments in case of breach of contract by the contractor;
3.la performance guarantee covering the risks arising from the breach, improper performance or failure to meet deadlines.

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Introduction Methodology autonomous

Guarantees are autonomous from the practice of trade international.On can define the independent guarantee of a contract between the payer and guarantor that aims to give a guarantee to the obligee principal debtor (the principal). Before the reform of securities made in 2006 no legislation made no provision in French law the notion of guaranteed autonome.En effect technique guarantees self was not created by the founders of Code Civil but was borrowed from the law differentiates international.ca warranty independent of the bond is that the guarantor does not contract a commitment accessory to the obligation of the payer but a commitment to it propre.Le principle of independent guarantee is as follows: The guarantor shall pay as the creditor recipient asked to pay the money as collateral.

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comment

Commentary compared arrest is an exercise very similar to the classical case comment. The method of case comment must therefore be strictly followed.
The exercise has the effect of a comparative study of two (sometimes many) decisions for their comment.
This type of exercise brings together the decisions that relate to each other: they operate, in principle, about the same issue droit.Généralement, three scenarios are possible:

1st case figure : Both decisions provide a similar answer to the question of law raised before PWAs must comment, explaining the meaning of decisions, check the size and scope of the solution posed. Is it a well-established case law? Is this the rallying of a court or training from one jurisdiction to another case? (Judges from the bottom and the Court of Cassation, two divisions of the Court of Cassation ?...)

second scenario: Both oppose decisions about a common question of law . The comment must trace the reasons for such opposition and scope of each solution in the field. Is it repeated opposition, a new opposition? Are there other decisions confirming any solutions? One of the decisions she is a jurisprudence isolated? The decisions they spend does opposing doctrinal views?

third scenario: The two decisions build on the same issue droit.Le comment must verify the contribution of each decision on the rule of law applied and explain the meaning and the scope of this rule under both décisions.Dans all scenarios, this exercise assumes that the aspect of comparative commentary is present throughout the developments and that, upon introduction. It is, in no event to dedicate a separate part in the study of each decision but to take all the common issues on which the two decisions are confirmed, oppose or complètent.Ainsi introductory sentence should indicate the common area which involves both decisions

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compared Methodology

This exercise is a bit like if someone asked you your opinion on what happened to him. After the lectures, that the concrete!
You're in the shoes of a lawyer, faced with a case you need clarification.
There are 3 parts:

Introduction
1 - the facts: It summarizes the maximum removing the superfluous, but keeping all that could be important ...
2 - The characterization of the facts: we need to shape the facts, give them a legal sense, with a contract for example ...
3 - The legal question: As for the comment it follows from the finding of facts and statement of the problem. She also is introduced by "whether it is ..."
4 - The different possible solutions principe.Vous here set out the questions that must be asked to find the solution to the dispute. It ends up with some questions (if they were already asked, are found here, unless you make an introduction shorter for each question).
5 - Announcement plan.Ici no title, it anonce just thinking that we will follow, as clearly as possible.


Development
You must make as many parts as there are problems and subdivide the problem if there is one.
It is not necessary to be careful about the balance between the parties: here is flexible.
You must appreciate the facts, identifying legal, give your opinions and solutions you can provide.

Conclusion
It is mandatory and important.
should summarize the solutions you have arrived starting with a sentence like: "It appears that ultimately ...". If you wish, but especially an opening made no prediction on what might happen in the future!

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case study Synthesis (TDn3)

The content and scope of the disclosure requirement imposed on the creditor for security.

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Topic Essay (TD n2)

The content and scope of the handwriting on bail.

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Focus Question (n1 Td)

What are the general issues raised by the operation of security on legal, economic and financial?

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The methodology of the dissertation

Understanding suje t

1. Read very carefully the issue. Understanding of the subject will determine the quality of your work. Understand the topic (What's this?) Involves asking questions about the content and the "limits" of the subject. These limits may be linked to precise definition of the subject which should lead to reflection on it.
   
2. Mobilising knowledge. Make the draft list of issues, eliminate all points that seem, after reflection, off topic or accessories. It is essential to address only the issue raised, but the whole subject. Search
   
3. then a plane trying to logically group the issues that remain on your list and identify the main ideas. Give a title to each party in each paragraph. Each headline should summarize the idea of each party or each paragraph. The plan thus constructed must be logical and rigorous. The plane into two parts is generally recommended.
   

The rules of legal essay
The essay necessarily includes legal a substantial introduction, followed by two parties and possibly a conclusion.

1.The introduction

. The start or first sentence of the introduction . It should, as far as possible be incisive. If not directly attack the subject.

. The definition of the subject. Show that you have identified the essential concepts that must be addressed.

. The general considerations and historical that should allow defining the subject in context.

. The position of the problem : the problem.

. The announcement of the plan.

2. The parties
They mobilize the candidate's knowledge in the service of an argument, a logical proof and structurally sound. Each part includes:-The title of Part-The introduction of part or "hat." -The sub-sections. -The different points in each sub-area.

The first part includes the transition to the second part. The second part (or third) includes the transition with the conclusion.

3. The conclusion The conclusion must be the culmination of your work. It should not be a summary or repetition of the arguments above. It ends with an opening to other questions or to a more general

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Large lines of the methodology of case comment

The arrest record is the basic element of the commentary contained in the introduction.
The case comment was intended to explain the scope, the "interest and providing a stop.

Introduction :

1. a phrase "attack" a sentence where the stop in a broader context, most often in relation to the major concepts of your course.
   it comes to giving a brief indication to the reader or listener of the area in which you want to do "fit", to which we want to bring the study of the stop.
   It is impotant to give the date and the court which made the decision to react.
2. the statement of facts : Only
   should include the facts essential to understanding the immediate shutdown. You should not have more than 5-6 lines.
3. the statement of the procedure :
   It does not go into too much detail. Keep it simple and clear.
4. arguments of the parties:
   same advice: do not start before the time
   comment is here that tested your skills and style synthesis.
5. the problem of law : heal him while he is critical and determines the fate of the solution
   and Reasons:
   as it is still no comment be brief as far as it can
6. announcing the plan:
   it should flow naturally the brief explanation of why you should
   announce the immediate parties, that is to say, the first and second parts with no reference to the respective subparts.
   Examples: - "We will study, in part, its title-turn-and second-party ... put its title-"
   -or "melt" the announcement in writing and put in brackets "first the "/" second party ".
   

Developments:

developments must be articulated around two parties and two parties in each party. It should show the titles. Never forget to announce, in a hat, and each party following subsection. I the need to introduce each part and in part by a transitional phrase. This one can conclude the treated by introducing another. Each sub-sections should be about the same length. The only exception relates to the generally accepted B ') in the second half. It may be shorter and is usually an opening in relation to the central themes addressed in the commentary. It replaces a few concluding essay particular literary required.

Conclusion (if possible)