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Cautionnement et entreprises en difficulté

Abstract : The treatment of the economic difficulties of companies was originally oriented towards liquidation because of its traditionally moralistic approach, since bankruptcy was then necessarily faulty. Driven by the various economic crises and mass unemployment that they provoked, it became clear to the legislator that such an approach to economic failure had to evolve.Thus, for several decades now, the emphasis has been on preventing difficulties. In this new context, the legislator intends to rely on the guarantee, a natural person, as a lever of anticipation. It thus exploits the status of secondary debtor of the latter, hoping that its fear of being called after the bankruptcy, will lead it to direct the principal debtor towards the preventive procedures. It is for this purpose that it extends, under certain conditions, the benefit of the protective measures enacted in favor of the principal debtor in the context of such proceedings. In so doing, these measures constitute a derogation from the guarantee in the context of collective proceedings, which should encourage creditors, who seek above all the settlement of their claims, to consider other mechanisms of this type as collateral for the insolvency of the principal debtor is not the primary function. In turn, the guarantor, in order to ward off the risk of a definitive contribution burdening it in the event that the procedures envisaged have not resolved the economic difficulties of the principal debtor, will have to explore different avenues which will allow it to dilute this risk.
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Abdouramane Diarra. Cautionnement et entreprises en difficulté. Droit. Université de La Rochelle, 2017. Français. ⟨NNT : 2017LAROD006⟩. ⟨tel-01906054⟩

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