Law of bank loan
If common contract law has been significantly modernized by Ordinance No. 2016-131 of February 10, 2016 1, ratified by Law No. 2018-287 of April 20, 2018 2, it seemed useful to the Chancellery to consider a comparable improvement with certain so-called “special” contracts, found in the Civil Code. It is true that some of their provisions date from 18043.
The idea here is therefore to modernize the articles of law that govern them, while bringing them into line with various solutions identified by case law deemed appropriate. The reform also aims to bring the rules applicable to these contracts into line with those of ordinary contract law resulting from the order of 10 February 2016.
With the aim of working on this reform, the Directorate of Civil Affairs and the Seal (DACS) set up, in April 2020, a working group chaired by Professor Stoffel-Munck, and composed of academics and of practitioners. In July 2022, it drew up a preliminary draft reform of the law on special contracts relating to: the sales contract, the exchange contract, the rental contract, the business contract, the loan contracts, the deposit contract, random contracts and finally the mandate contract.
4. As Professor Stoffel-Munck explains in his general presentation, "the spirit that governed this necessary work was to clarify when necessary, to simplify when possible, to modernize, that is, to open up to the realities that were weakly considered in the past and to take into account the obsolescence of many special rules”.
5. On July 29, 2022, the DACS launched a public consultation on this preliminary draft reform6. Legal professionals, economic actors and academics were thus invited to submit their observations on this work. This consultation ended on November 18, 2022.
Let us then observe this preliminary draft, and more particularly its passages on the loan contracts7, in order to identify the impacts on the bank loan
8. Of course, we will not deal here with developments relating to ready-to-use (commodat).
9. Money lending falling under the category of consumer lending. Indeed, as the authors of the preliminary draft remind us, "consumer lending seems to be dominated by the gigantic figure of money lending".
10. Are the proposals then revolutionary in this area? Not at all. As indicated by the explanatory passages of the preliminary draft: the commission decided to "stick to the essentials and not to go beyond the statement of the main principles, in accordance with the vocation of the Code civil”. This then results in “a most modest contribution”.
11. More concretely, we can simply observe jurisprudential confirmations (I) and measured developments (II), which necessarily leaves some regrets (III).
I – Jurisprudential confirmations
First, the proposed article 1893 provides that “an onerous consumer loan is consensual”. As Professor Stoffel-Munck summarizes in this article, "the stipulation of interest makes the lender's commitment sufficiently credible for the borrower to be able to rely on it like a creditor, which gives him standing demand its forced execution".
12. This solution will not surprise the reader. The working group thus generalizes the solution adopted, for more than 20 years, by the jurisprudence, with regard to the loan emanating from a credit professional.
13. Indeed, we remember that the first civil chamber of the Court of Cassation had considered that this loan should no longer be seen as a real contract, but a consensual contract. From now on, the solution would be valid for all types of loan as long as it is granted for consideration.
Secondly, it is expressly provided, by article 1893-2, that the promise of a loan at interest "obligates the promisor to deliver the thing if the beneficiary informs him, in compliance with the forms and deadlines possibly agreed, his desire to exercise the option". The loan promise, well known in our case law, would therefore appear in the Civil Code.
On this point, it should be noted that the envisaged article 1893-3 specifies that in matters of money lending this promise is called “the opening of credit”. This solution is also in line with the notable decisions of the high court.
14. It has thus been accepted for a long time that the opening of credit is the agreement by which a person, here a credit institution or a finance company, undertakes to advance a sum of money to another when the latter will request it. The loan contract will therefore only be truly formed when the beneficiary of the offer exercises the option. Specific consequences could also be deduced from this solution. Thus, concerning its unused fraction, that is to say that for which the option has not been exercised, the credit opening is not sizable.
15. Lastly, the proposed article 1907, paragraph 2, indicates that “the conventional rate of interest is determined or determinable”. For the working group, there is "no reason to deviate from the solutions adopted for the sale contract and the lease contract for which the determinability of the price and the rent has been consecrated"16.
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