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Le droit des sûretés au prisme de la faute : Contribution à l'analyse de la notion de sûreté

Abstract : The relations between guarantee creditors and debtors are sensitive ones. The importance of the secured transaction, added to the unbalance of the guarantee explains the abundant litigation in this field. These relations are sometimes disturbed by the commission of a fault: the purpose of this thesis is to study this type of fault.The definitions of fault and guarantee have obligation as a common feature. A fault is an obligation breach, a guarantee protects the performance of an obligation. Thus, obligation appears to be a useful tool to analyze guilty behaviours in secured credit law. Moreover, obligation turns out to be the basis of guarantee: every credit guarantee is to be explained in reference to this element.As a matter of fact, the obligation can be broken down in two links. The obligatory link is about the benefit and the creditor’s enforcement power; the obligation link corresponds to the person subjugation, the behavioural requirements that he musts respect. Only this second link is systematically generated by a guarantee: the parties must essentially comply with the aim of the transaction. The obligatory link is the final prospect: the benefit, which a guarantee was established to protect.Nevertheless, the fault doesn’t manifest itself unitarily when it hinders a guarantee. The fault of the debtor is an alteration of the creditor’s additional opportunity to be paid. The fault of the creditor can be an alteration of debtor’s ability to refund or a violation of his estate, whether it is a personal safety or a property right securing payment.Eventually, it is regarding the guarantee concept that the analysis of fault reveals its interests. This analysis is an opportunity to suggest a definition of guarantee, to propose some elements in order to rationalise secured credit law but also to reduce fault occurrences and some of their deleterious effects.STAR
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Submitted on : Tuesday, January 16, 2018 - 12:08:07 PM
Last modification on : Tuesday, October 20, 2020 - 11:30:14 AM
Long-term archiving on: : Saturday, May 5, 2018 - 6:59:55 PM


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  • HAL Id : tel-01685326, version 1



Dimitri Nemtchenko. Le droit des sûretés au prisme de la faute : Contribution à l'analyse de la notion de sûreté. Droit. Université de Bordeaux, 2017. Français. ⟨NNT : 2017BORD0777⟩. ⟨tel-01685326⟩



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