Suretyship and liability: commentary on Order no. 16822 of 2024

In an increasingly complex legal context, Order no. 16822 of 17/06/2024, issued by the Court of Cassation, offers important clarifications on the figure of the guarantor and their responsibilities in the event of a deterioration of the principal debtor's financial conditions. This decision, in particular, emphasizes how the status of a minority shareholder of a debtor company does not exempt the guarantor from their obligations, especially in the absence of prior authorization from the creditor.

The legal context of suretyship

Suretyship is a contract whereby a person (guarantor) undertakes to guarantee the payment of another's debt (principal debtor). It is regulated by the Civil Code, in particular by art. 1956, which establishes the conditions and methods for the guarantor's release. The Order in question fits into this framework, highlighting specific circumstances that can influence the guarantor's position.

Obligation of the guarantor - Financial conditions of the principal debtor - Change - Cumulation of the status of minority shareholder and guarantor of the debtor company - Release of the guarantor for lack of prior authorization for the credit - Exclusion - Rationale. In suretyship for future obligations, in the event of a deterioration of the financial conditions of the principal debtor company after the conclusion of the guarantee contract, the guarantor who is also a minority shareholder of the guaranteed company is not released in the absence of prior authorization from the creditor for the granting of further credit, because, in exercising the prerogatives inherent in being a member of the assembly (at least on the occasion of the approval of the financial statements), they have the concrete possibility of knowing the economic situation and their culpable ignorance cannot justify a "substitute" duty of supervision and control on the part of the creditor bank.

Implications of the ruling

The Court clarified that the guarantor, even if a minority shareholder, cannot consider themselves released from their obligations solely due to the deterioration of the principal debtor's financial conditions. This aspect is crucial, as it implies that the guarantor must maintain a certain degree of vigilance and knowledge of the debtor company's economic situation.

• The guarantor has access to the company's economic information.
• Their ignorance regarding financial conditions cannot justify the absence of vigilance.
• The lack of creditor authorization does not exempt the guarantor from their obligations.

Conclusions

Order no. 16822 of 2024 represents an important reference point for understanding the dynamics between guarantor and debtor. It confirms that the guarantor's liability cannot be evaded and that, as a minority shareholder, they have an obligation to actively inform themselves about the economic situation of the guaranteed company. This principle not only protects the creditor's rights but also promotes greater responsibility on the part of those who assume guarantee roles within companies. In a constantly evolving legal landscape, it is essential for legal professionals to stay updated on such rulings to provide the best support to their clients.