Estimated reading time (in minutes)
According to article 1415 of the Civil Code , the spouses can only pledge or loan their own property and income, unless they have obtained the express consent of the other spouse. The consent of one of the spouses does not bind his personal assets. However, if both spouses are joint sureties for the same debt, they pledge all their assets, including their joint assets. The Court of Cassation reaffirmed this principle in a judgment delivered by the commercial chamber on February 5, 2013.
Joint Deposit: Individual Liability and Solidarity Commitment:-
In this case, a married couple under community regime had acted as joint surety to obtain a loan for their commercial enterprise. The Court of Appeal ordered them to repay the bank using all their assets. The couple argued that their common property should be protected since, according to the Civil Code, each spouse can only pledge their own property and income, unless the other spouse expressly consents.
However, the Court of Cassation has ruled that when both spouses are simultaneously guarantors of the same debt, this implies a mutual agreement to also pledge their common property. Therefore, in such cases, all the property of the couple can be seized, and not just the individual property of each spouse.
Joint suretyship and implication for matrimonial property: –
This decision underscores the importance of understanding the implications of suretyship and the extent to which it involves the pledge of matrimonial assets. It reminds spouses to consider the implications and obtain the necessary consent when pledging their property as security for debts, particularly in cases involving spouses.
Damy Lawyers – 2020
