lundi 5 novembre 2007

La qualification de garantie autonome

Chaque fois que l'acte conclu n'est pas clair, on hésite sur le choix de qualification à opérer.En effet, on doit faire un choix entre le cautionnement et la garantie autonome dans certains cas.Le juge n'est pas tenu de respecter la qualification de l'acte formé par les parties.Pour déterminer si on a affaire à une garantie autonome le juge peut prendre en compte la qualité de professionnel ou de profane du garant:ainsi s'il s'agit d'un profane, les juges seront enclins à qualifier l'acte de cautionnement.(Cass.com 30 janvier 2001)

La qualification de garantie autonome suppose la réunion de deux critères:
  • L'autonomie de l'objet:l'objet de l'engagement du garant n'est pas de régler la dette d'autrui, mais de payer ce que lui demandera le bénéficiaire de la garantie. N'est donc pas une garantie autonome l'engagement de payer"ce que doit le débiteur".
  • L'inopposabilité des exceptions: ce second critère est une conséquence du premier;engagé à payer une dette qui lui est propre, le garant ne peut se prévaloir des imperfections affectant l'obligation garantie.

En pratique ce second critère est souvent déduit de la clause de paiement à première demande qui est entendue comme l'impossibilité de se prévaloir des exceptions appartenant au débiteur.

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