Credit broker’s duty to advise: concrete difficulties

The law applicable to intermediaries in banking transactions and payment services is relatively technical. It is not easy for the professionals concerned to know in which cases they may see their liability engaged, and to determine what should be put in place to eliminate this risk. This contribution then returns to a situation that is often mentioned to us by these intermediaries, and more particularly credit brokers, and which raises many concerns on their part.

 

1.  An intermediary in banking transactions and payment services (IOBSP) is a person who carries out, on a regular basis, intermediation in banking transactions and payment services against remuneration or any other form of economic advantage. More specifically, this intermediation consists of “presenting, proposing or assisting in the conclusion of banking transactions or payment services or carrying out any work and advice preparatory to their completion”1.

 

2.  Article R. 519-1 of the Monetary and Financial Codespecifies that is considered as such a presentation, proposal or assistance in the conclusion of a banking transaction or the provision of a payment service "the fact for any person to seek or obtain the customer's agreement on the bank transaction or payment service or to explain orally or in writing to a potential customer the terms of a bank transaction or a payment service, with a view to carrying it out or supplying it”. Thus, the intermediary does not personally carry out the banking or payment service operations in question; it merely brings together the parties to these transactions, one of which must necessarily be a credit institution, a payment institution, or a "similar institution"2.

 

3.  It should be noted that Article R. 519-4 of the Monetary and Financial Code divides IOBSPs into four distinct categories: brokers in banking transactions and payment services (COBSP)3, exclusive agents in banking transactions and payment services (MEOBSP)4, agents in banking transactions and payment services who carry out intermediation under one or more non-exclusive mandates (MOBSP)5, and finally the agents of intermediaries in banking transactions and payment services who carry out intermediation under mandates entrusted by persons belonging to the three previous categories (MIOBSP)6.

 

4.  Above all, it should be recalled that these IOBSPs are now subject to a strict legal framework, set out in Articles L. 519-1 et seq. of the Monetary and Financial Code . This finds its main source in Article 36 of Law No. 2010-1249 of October 22, 2010 on banking and financial regulation.7, but has since been subject to numerous legal changes. This was particularly the case because of Ordinance No. 2016-351 of March 25, 2016 on consumer credit agreements relating to residential real estate (known as the MCDOrdinance )8or Law No. 2021-402 of April 8, 2021 on the reform of insurance brokerage and brokerage in banking transactions and payment services9. Important clarifications are also provided for in articles R. 519-1 et seq. of the same code.

 

5.  The case of “brokers” (COBSP) will hold our full attention here. It is true that these professionals are bound by specific obligations envisaged by articles R. 519-27 and following of the Monetary and Financial Code10. In particular, there is a duty to advise11. This one is particularly important.

 

6.  But how to define such a duty? In general, this can be seen as an obligation for the professional concerned, in addition to that of informing his client (i.e. the transmission of objective data), of informing him of his opinion as to the advisability of carrying out a specific operation12. The advice then presupposes an assessment likely to guide the decision of the other party. In this, it differs from the duty of warning found in banking law.13which is, for its part, between information and advice, insofar as it simply tends to draw the attention of the contracting party to a negative aspect of the contract or of the object covered by the contract.

 

7.  This obligation on COBSPs has important practical implications. We will demonstrate this here through the responses to a situation that occurs quite regularly in practice and gives rise to many uncertainties.

 

8.  A business introducer sends a client to a broker to make an investment based on the Pinelsystem , which, for the record, entitles you to a tax reduction on the purchase price of rental accommodation, under certain conditions14. However, the broker realizes that this investment is not consistent with the applicant's profile. So what should this intermediary do? Should he still help her find the financing? Is his responsibility likely to be engaged? Are rules of form required, moreover, in the event of refusal or, conversely, of acceptance?

 

9.  We will answer the first three questions by observing the state of the applicable law (I). For the latter, it is more "common sense" that will clarify the concerns of the brokers concerned (II).