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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