Where several guarantors secure the same loan without being jointly and severally liable between themselves, the total of the sums charged to them cannot exceed the debt of the principal debtor. Each order must be set in proportion to the undertaking given. The commercial chamber so held on 1 April 2026, quashing a decision that had ordered two guarantors to pay €120,000 each for a debt of approximately €137,000.
Key points
- The total of the orders made against several guarantors who are not jointly and severally liable between themselves can never exceed the amount of the principal debtor's debt.
- Each order is determined in proportion to the guarantors' respective undertakings, and not by reference to the individual cap set out in each instrument.
- This limit applies whether or not the guarantors are jointly and severally liable towards the principal debtor: all that matters is the absence of joint and several liability between them.
- A bank that obtains from two guarantors a total exceeding its claim admitted to the liabilities of the compulsory liquidation (liquidation judiciaire) risks seeing the order against them reduced.
Two guarantors, €240,000 for a debt of €137,000
The commercial chamber partially quashes the decision of the court of appeal: two guarantors who were not jointly and severally liable between themselves could not be ordered, together, to pay more than the secured debt (Com., 1 April 2026, No. 23-23.758). A bank had granted a €200,000 loan to a company operating business assets (fonds de commerce). By the same instrument, two individuals stood as guarantors, each up to a limit of €120,000. The company was placed in compulsory liquidation, and the bank brought proceedings against both guarantors to enforce their undertakings.
The decision under appeal (CA Paris, 25 October 2023, No. 22/13848) had held that the two guarantors were not jointly and severally liable between themselves, while upholding the assessment of the secured outstanding loan balance at €136,879.40, plus interest. The court of appeal had nevertheless ordered each guarantor to pay €120,000 to the bank, a total of €240,000. The bank challenged the admissibility of the ground of appeal; the Cour de cassation (France's highest civil court) held it admissible, since the ground had arisen from the decision under appeal.
The commercial chamber rules on the basis of Articles 2290 and 2302 of the French Civil Code, in their wording prior to that resulting from Ordinance No. 2021-1192 of 15 September 2021. The first provision prohibits a personal guarantee (cautionnement) from exceeding what is owed by the debtor; the second binds each guarantor of the same debtor for the same debt to the whole of the debt. From their combination, the decision derives a rule capping the total (free translation):
It follows from the combination of these provisions that where several persons have stood as guarantors of the same debtor without being jointly and severally liable between themselves, the total amount of the orders made against the guarantors, which must be determined in proportion to their respective undertakings, cannot exceed the amount of the principal debtor's debt. This is so whether or not the guarantors are jointly and severally liable towards the principal debtor.
What this cap changes for a guarantor called upon to pay
A guarantor sued alongside another can object to the creditor that the sum of the orders sought exceeds the secured debt. The reasoning of the court of appeal rested on a mechanical addition: each instrument capped the undertaking at €120,000, so each guarantor owed €120,000. The commercial chamber rejects that cumulation. The cap stipulated in the instrument sets an individual maximum; it does not create a separate debt added to that of the other guarantor.
A personal guarantee remains an accessory security. It serves to pay a debt that exists, to the extent that it exists. Where two guarantors secure the same loan, the creditor cannot recover the same sum twice. The rule laid down by the decision under discussion therefore requires the court to carry out two successive operations: determine the amount of the principal debtor's debt, then apportion the orders between the guarantors in proportion to their respective undertakings, without the total exceeding that debt.
For a guarantor, the financial stake is direct. In the case decided, the difference between €240,000 and €136,879.40 represents the amount that the two guarantors should not have been ordered to pay. A guarantor who pays the creditor in full retains, in principle, their recourse against the principal debtor and against the other guarantors; but such recourse presupposes a solvent debtor, which is often lacking in compulsory liquidation.
What scope for multiple personal guarantees on the same loan?
The decision settles a recurring calculation question in cases involving personal guarantees given by several persons in the same instrument, without drawing any distinction based on joint and several liability towards the debtor. The clarification matters: the joint and several liability of each guarantor towards the principal debtor changes nothing as regards the cap on the total. What counts is the absence of joint and several liability between the guarantors. A bank cannot therefore rely on the waiver of the benefit of discussion (bénéfice de discussion) to add individual caps together.
The court of appeal had analysed in detail the contractual clause on multiple guarantors, concluding that both guarantors secured one and the same debt arising from the same loan. That analysis is not censured as such: what is censured is its financial consequence. Securing the same debt does not entitle the creditor to receive its amount twice.
The quashing is partial. It affects the assessment of the amount of the respective orders against the two guarantors, including that against the guarantor who had not lodged an appeal to the Cour de cassation, by reason of a necessary link of dependence. It leaves standing, however, the order requiring one guarantor to indemnify the other, that order resting not on the guarantees in dispute but on a settlement agreement concluded subsequently between the parties. The case returns to the Paris court of appeal, sitting with a different composition, to reset the amounts.
The checks to carry out before paying a bank
A guarantor called upon to pay would do well to reconstruct the exact amount of the secured debt before performing, and to identify the other guarantors of the same loan. Three elements are worth gathering. The amount of the lender's claim, as it results in particular from its admission to the liabilities in the insolvency proceedings of the debtor. The number and the cap of the personal guarantees given for the same loan. Finally, the contractual stipulation governing multiple guarantors and joint and several liability between them.
Comparing the total claimed with the actual debt is a simple check. Where the sum of the claims exceeds the debt, the rule laid down by the decision under discussion provides an argument for reduction. That check should be carried out at first instance, even though, in this case, the Cour de cassation held admissible a ground of appeal that had arisen from the decision under appeal.
On the lender's side, care is needed both in drafting and in the amount claimed. Stipulating individual caps whose total exceeds the capital lent secures no additional recovery where the guarantors are not jointly and severally liable between themselves. The claim brought before the court must match the actual debt, possibly reduced by forfeitures of interest ordered on account of breaches of the information obligations owed to the guarantor.
What steps to take where several guarantors are pursued?
- Quantify the principal debtor's debt, taking account of payments received and of any forfeitures of interest.
- List all the personal guarantees covering the same loan and the cap on each.
- Read the clause devoted to multiple guarantors, to establish whether or not there is joint and several liability between them.
- Add up the sums claimed from all the guarantors and compare that total with the secured debt.
- Raise the disproportion of the total in the first submissions, without waiting for the appeal.
Frequently Asked Questions
Can two guarantors each be ordered to pay the full cap set in their guarantee?
No, where the guarantors are not jointly and severally liable between themselves and secure the same debt. The commercial chamber held on 1 April 2026 that the total of the orders made against the guarantors cannot exceed the debt of the principal debtor, each order being determined in proportion to the respective undertakings. The cap in each instrument is an individual maximum, not a separate debt added to that of the other guarantor.
Does joint and several liability with the borrower change this cap?
No. The decision of 1 April 2026 states expressly that the limit on the total applies whether or not the guarantors are jointly and severally liable towards the principal debtor. The decisive criterion is the absence of joint and several liability between the guarantors themselves. A waiver of the benefit of discussion, which makes the guarantor jointly liable towards the bank, therefore does not allow the creditor to add individual caps together to obtain more than its claim.
How does a court apportion the debt between several guarantors not jointly liable between themselves?
The court determines the orders in proportion to the guarantors' respective undertakings, within the limit of the total amount of the principal debtor's debt. That is the formula adopted by the commercial chamber on 1 April 2026. In the case decided, the court of appeal had set the secured outstanding balance at €136,879.40, plus interest, then ordered each guarantor to pay €120,000. The case is remitted to the Paris court of appeal, sitting with a different composition, to reset the amounts.
Can a guarantor who has paid the whole debt recover from the other guarantors?
A guarantor who has paid will in principle have recourse against the principal debtor and an action against the other guarantors of the same loan. The effectiveness of that recourse depends entirely on the solvency of those pursued. In practice, where the debtor company is in compulsory liquidation, recourse against it is worth little, which shifts the whole issue to the apportionment between guarantors at the time of the order.
Should the amount claimed by the bank be challenged at first instance?
Yes, that is the safest course. A quantified challenge to the secured amount, raised in the first submissions, allows the calculation to be decided by the lower court judges, who assess the evidence. Waiting exposes a party to admissibility difficulties for new arguments. In practice, a guarantor facing proceedings should ask the creditor for a breakdown of its claim and the list of guarantees taken for the same financing.