From the starting point of the prescription in matters of lending money – Contract and obligations

Judgments concerning the starting point of the prescription are important as their practical scope is considerable. For example, last October, we mentioned in these columns a judgment which specified that the death of the debtor did not automatically lead to the forfeiture of the term of an interest-bearing loan, which had a fundamental impact on the starting point of the prescription of the action of the banking institution (Civ. 1^re, Oct. 20, 2021, n° 20-13.661, Dalloz news, Oct. 25, 2021, obs. C. Helaine; D. 2021. 1916 ). These questions are, in fact, of particular interest in loan litigation, in particular for actions for payment brought by the bank or for those for liability following a breach of the duty to warn or the duty to advise and information formed by the borrower. It is in this context that the first civil chamber of the Court of Cassation rendered four judgments on this question on January 5, 2022. The decisions studied go in the same direction, that of the praetorian precision brought to the starting point of the prescription extinction of actions involving money lending at interest. These judgments are all the more important when we know the disastrous fate of the notion of “informed” person in suretyship law following the reform resulting from Ordinance No. 2021-1192 of September 15, 2021 (L Bougerol, Security law reform (Season 2, Episode 2): formation and scope of suretyship, Dalloz news, Sept. 19, 2021). As far as case law on the loan of money at interest is concerned, the notion of “informed” borrower still has a bright future ahead of it. Evidenced by the judgments submitted to our few observations today.

Details on the status of informed borrower and on the starting point of the limitation period for various liability actions

The first two annotated decisions rendered on January 5, 2022 (appeals no.^you 20-16.031 and 19-24.436) involve a loan that is granted to one or more people, but for which several installments remain unpaid. The forfeiture of the term is then pronounced by the banking establishment. The third appeal (n° 20-18.893) concerns a particular case where one of the professional borrowers is placed in receivership; the bank then assigning his joint co-debtor wife in payment.

The Court of Cassation first operates a welcome reminder of its constant case law: the lender of money is not bound by a duty to warn only with regard to the uninformed borrower. We know that this duty is assessed on the day of the conclusion of the loan (Civ. 1^re, 6 oct. 2021, n ° 20-17.219, AJDI 2021. 854 ; ibid. 854 ). In appeal no. 19-24.436, this incise is repeated at the beginning of paragraph no. 6 when the first civil chamber recalls “that on the date of the conclusion of the loan”, the borrower associated with a…

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