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Report To The President Of The Republic No. 2006-346 Of 23 March 2006 On Secured Order

Original Language Title: Rapport au Président de la République relatif à l'ordonnance n° 2006-346 du 23 mars 2006 relative aux sûretés

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JORF No. 71 of 24 March 2006 Page 4467
Text No. 28



Report to the President of the Republic on Order No. 2006-346 of 23 March 2006 on security rights

NOR: JUSX0600032P ELI: https://www.legifrance.gouv.fr/eli/rapport/2006/3/24/JUSX0600032P/jo/texte


Mr. President,
Modernising security rights in order to make them readable and effective for both economic actors and citizens while preserving the balance of interests, such as the objectives of this order.
By inserting All the texts on security rights in a fourth book of the Civil Code, the order is in the French legal tradition of codification and works for a better readability of the
. Which, on the one hand, simplify the creation of security rights, broaden their base, and facilitate their method of enforcement, while also providing for protective rules in favour of those who use credit, efficiency objectives and
is in the light of these objectives, on the basis of the report given to the custody of seals on 31 March 2005 by the working group chaired by Professor M. Grimaldi and within the scope of the clearance determined by Section 24 of Act No. 2005-842 dated July 26, 2005, that this order was developed.
The order is divided into five titles:
Title I. -Provisions relating to Book IV of the Civil Code;
Title II. -Provisions amending the code of consumption;
Title III. -Provisions modifying the trade code;
Titles IV and V.-Miscellaneous, transient and final provisions.


1. TITLE I: PROVISIONS RELATING TO
BOOK OF CIVIL CODE


Title I of the Order creates book IV on security rights, and then details the rules relating to personal and security rights On the one hand, and security rights on the other hand.


1.1. The creation of a fourth book on security
1.1.1. The Plan of Book IV


Articles 1 and 2 of the Ordinance modify the architecture of the Civil Code by replacing the current book IV on the provisions applicable to Mayotte (which will be inserted in a book V), by A book devoted exclusively to security rights. This book is divided into two titles. The first, entitled " Personal security ", is intended to receive the rules governing the guarantee and to receive in the civil code two personal security rights elaborated by the practice, the stand alone guarantee and the letter of intent. The second title, entitled " Security rights ", is subdivided into three subtitles, one on general provisions, the other on security rights, and one on security rights. Subtitle II is the subject of a division into four chapters devoted respectively to " Movable privileges " (chapter I), au " Pledge of tangible personal furniture " (Chapter II), au " Pledging of intangible furniture " (Chapter III) and " Property retained as security " (Chapter IV). Subtitle III welcomes the rules governing security rights in immovable property and includes a chapter on security rights in immovable property. Real Estate Privileges ", a Chapter II relating to" Antichresis ", a Chapter III relating to" Mortgages ", a Chapter IV Relative to " The registration of privileges and mortgages ", a Chapter V relating to" The effect of the privileges and mortgages ", a Chapter VI relating to" Purge privileges and mortgages " And Chapter VII relating to " The extinction of Privileges and mortgages ".


1.1.2. The general provisions of Book IV


The general provisions that will appear at the top of Book IV of the Civil Code are provided for in Article 3 of the Ordinance.
They reproduce the current Articles 2092 and 2093 of the Civil Code (relating to the principle of the general pledge right), which become Articles 2284 and 2285 of this book respectively.
They contain a section 2286 on the right of retention. This text summarises the assumptions in which a creditor may have to avail himself of a right of retention. It is also stated that this right " Loses by voluntary divestment ".
Finally, in order not to question the rules of public policy applicable in the event of the commencement of a safeguard procedure, judicial remedy, Section 2287 specifies that the provisions of Book IV do not " Do not impede " Application.


1.2. The reform of personal and security rights
1.2.1. Personal security rights


Article 4 of the Ordinance states that personal security rights governed by Title I of Book IV shall be the guarantee, self-guarantee and letter of intent and shall describe the plan of Title.


1.2.1.1. The renumbering of
texts relating to the bond


Section 5 is devoted to the bonding provisions. The enabling law of 26 July 2005 did not allow the Government to legislate in this respect. The sole purpose of the provisions relating to this security is to transfer the texts relating to the bail which form Title XIV of Book III of the present Civil Code in Book IV of the same Code. Articles 2011 to 2043 are repeated in extenso and become Articles 2288 to 2320 respectively. Only the architecture of the current Title XIV has been modified to take account of the creation of Book IV (so the chapters have been replaced by sections, and sections by sub-sections).


1.2.1.2. The consecration of the
Stand-alone Warranty and the Letter of Intent


Sections 6 and 7 are intended to use two new personal security rights in the Civil Code: the Stand-alone Guarantee and the Letter of Intent, each Of those security rights that are the subject of an article in the new book.
Stand-alone security is defined as " The undertaking by which the guarantor is obliged, in consideration of an obligation entered into by a third party, to pay an amount either to First application in accordance with agreed terms " (Section 2321).
In this case, the stand alone guarantee is clearly distinguishable from the bond when the guarantor has to pay " An amount " And not execute the principal debtor's debt. However, in order to satisfy the terms of the enabling legislation, the presumption of manifest abuse or fraud is expressly reserved in the second paragraph of that article so that the guarantor may, where appropriate, rely on it for Refuse to pay.
In order to protect consumers against the development of this security right to which they are not accustomed and who do not enjoy the protective rules applicable to the guarantee, the order proposes, in its Article 39, to prohibit its subscription on the occasion of an appropriation under Chapters I and II of Title I of Book III of the Consumer Code. Similarly, Article 53 provides that the autonomous guarantee shall not be entered into in respect of leases for residential use. ' Instead of the security deposit " And " Within the fixed amount limit " By Article 22 (1) of the Law of 6 July 1989 (two months' rent). As a result, the independent guarantee will not be required in addition to the security deposit, which would have forced the tenant to set up guarantees that were too large in relation to his income. Nor can it be substituted for the surety whose regime is laid down in Article 22 (1) of the same law.
The letter of intent is also defined broadly enough to allow for the consideration of the different Applications in practice of this security since it is defined as " The undertaking to do or not to do so in respect of the support given to a debtor in the performance of its obligation to its creditor. " (item 2322).


1.2.2. Security security rights


Article 8 details the architecture of Title II of Book IV of the Civil Code on security rights. It includes, inter alia, an Ier subheading entitled ' General Provisions " The current Articles 2094 to 2099 of the Civil Code, which become Articles 2323 to 2328 respectively.
Article 9 presents the architecture of subtitle II devoted to the
Section 10 includes the new section 2329 of the Civil Code, which announces the various security interests in the furniture that are dealt with by that subtitle. This includes successively the object of provisions, movable privileges, the pledge of tangible personal furniture, the pledging of intangible furniture and the property retained as security.


1.2.2.1. Movable privileges


They are referred to in section 9. Articles 2100 to 2102 of the Civil Code are reproduced without amendment respectively in Articles 2330 to 2332. Rules for the classification of privileges are set out in Section 3 of Chapter I of Subtitle II on security rights, which includes Articles 2332-1 to 2332-3.
Article 2332-1 new civil code rules the conflict between General and special privileges by taking up a solution established by the case-law and stating that: Unless otherwise provided, special privileges shall prevail over general privileges." This Article, however, reserves the case of derogations and thus refers in particular to the disruption of the classification in the event of the opening of a safeguard procedure, judicial remedy or in the event of the exercise of the Privileges granted to the public treasury.
Article 2332-2 regulates the conflict between general privileges by specifying that they " Exercise in the order of section 2331 with the exception of the privilege of the Consolidated Revenue Fund, whose rank is determined by The laws which concern him, and the privilege of social security funds, which comes to the same rank as the privilege of employees. "
Finally, Article 2332-3 summarises the rules on the classification between special movable privileges such as Established by the case-law on the basis of the former Article 2096 of the Civil Code.
These provisions are in conformity with the positive law, but their reminder, on the one hand, and the special arrangement of the new articles, on the other hand, allow Ensure better readability of the solutions identified in the case law and thus meet the objective of readability.


1.2.2.2. Redesign of the tangible personal furniture pledge


Article 11 of the Ordinance allows the provisions relating to the pledge of tangible personal property, the name of which is now reserved for security rights in tangible property (Article 2333).
Three sections are provided for, one on the common law of the pledge, the other more specifically for the motor vehicle pledge and finally one ("Common provisions") Which includes section 2354. This article repeats (under a different wording) the provisions of the current Article 2084 of the Civil Code to reserve the application of the special rules which are provided for in commercial matters (and in particular the special provisions applicable Warrants, etc.) And for the guarantees granted by the municipal appropriations (which remain governed by Decree No. 55-622 of 20 May 1955).


1.2.2.2.1. The common law of the pledge


Articles 2333 to 2350 are devoted to the common law of the pledge.
The contributions of the reform relate both to the conditions of training, to the effectiveness of the pledge and to the basis of the pledge. Realization of this security.


1.2.2.2.1.1. Conditions of training, opposability
and pledge base


The pledge may relate to a movable property or a set of tangible, present or future movable property (section 2333). It is no longer a real contract, the validity of which presupposes the remission of the thing, but instead requires the establishment of a writing (Article 2336: the pledge is " Perfect by writing a writing ... "). The future thing cannot, however, be that which does not belong yet to the grantor, since Article 2335 specifies that the pledge for the thing of another is invalid.
Article 2334 repeats the provisions of the present Article 2077 of the Civil code. However, it is added that where the pledge is granted by a third party, " The creditor has no action only on the affected property as security " Such that the third party does not make any personal commitment. It is thus put an end to the difficulties of interpretation arising from the concept of " Real bond " In case-law. However, in order to prevent a spouse who is married under the legal community from being able, without the consent of his spouse, to put a common good to guarantee the debt of a third party, section 50 of the order supplements section 1422 of the Code. The addition of a second paragraph with the addition of the spouses " May not be without the other, assign (a good of the community) to the guarantee of the debt of a third party ".
Third-party effectiveness of the pledge is subject to its advertising, The surrender of the thing in the hands of the creditor or of an agreed third party (Article 2337). The guarantee without dispossession is therefore devoted, which implies the establishment of an advertising system whose terms and conditions will have to be the subject of a decree (Article 2338).
Articles 2339 and 2340 govern the conditions for the cancellation of The registration and the rank assigned to each creditor in the case of successive pledges on the same property.
Sections 2341 and 2342 are intended to clarify the rules relating to the pledge of fungible goods. Thus, where the pledge is with dispossession, Article 2341 specifies that the creditor must hold the fungible things surrendered as a pledge, separated from things of the same nature which belong to it, but nevertheless recognizes the right of the parties to dispense The creditor of that obligation. In this case, the creditor will be able to acquire the property of the fungible goods, which is dependent on the creditor to return the same amount of equivalent things. Similarly, where the pledge is non-possessary, the grantor will be able to dispose of fungible things if the agreement so provides, to replace them with the same amount of equivalent things (section 2342)
The obligations of each party bound by a pledge agreement and sanctions in the event of non-compliance with one of those obligations. On the latter point, Article 2344, paragraph 1 provides that " The grantor may claim restitution of the property, without prejudice to damages, if the agreed creditor or third party does not fulfil its obligation to keep the pledge ".
The non-performance by the grantor of its obligation to preserve the pledge in the event of a pledge without dispossession may be sanctioned by the forfeiture of the term of the secured debt, unless the creditor prefers to accept one Supplemental pledge (section 2344, paragraph 2).
Section 2345 specifies that the secured creditor holding the property may collect the interest of the property that it charges on the interest of the debt or default on the capital.


1.2.2.2.1.2. Modes of performance of the pledge


The methods of making the pledge are referred to in Articles 2346 to 2348.
The inability of the parties to derogate from the rules applicable to civil enforcement proceedings in respect of Organizing the sale of the gaged property is always affirmed by section 2346 (prohibition of the parted way clause). Similarly, the ability of the creditor to seek judicial award is maintained in section 2347. On this point, however, the use of expertise is no longer systematic. It will be for the judge to assess the need.
Article 2348 terminates the prohibition of the Covenant as it allows the parties to agree upon the constitution of the pledge or after the creditor becomes the owner of the pledge. Well in the event of a debtor default. The creditor thus has a method of embodiing the simple, fast and inexpensive common good, provided that the valuation of the property may, where appropriate, be carried out by reference to its official listing in a market organised within the meaning of the code. Monetary and financial, the use of expertise is required only in the absence of such listing. On the other hand, any clause intended to circumvent these evaluation procedures will be considered unwritten.
In order to limit the development of model clauses, Article 37 of the draft order amends Article L. 311-32 of the Consumer Code. In order to repudiate the commissoires pacts entered into in the consumer credit agreements.
Article 2349 incorporates the provisions of the current Article 2083 of the Civil Code relating to the indivisibility of the pledge.
Article 2350 incorporates the provisions of Article 2075-1 of the Civil Code relating to the right of preference resulting from the consignment of sums ordered judicially.


1.2.2.2.2. The pledge for a motor vehicle


Section 2 of Chapter II of the pledge proposes to reinstate the pledge of the motor vehicle seller, governed by Decree No. 53-968 of 30 September 1953, in the Civil Code.
Only the provisions genuinely covered by the legislation are included in the Code, the surplus to be found in a future decree.
Also, this insertion is not carried out under constant law since it is proposed in a Concern for simplification and standardisation, on the one hand, to submit to the same rules the set of guarantees relating to the motor vehicle (and not only the guarantees granted to credit sellers and lenders of money for the purchase of These vehicles) and, on the other hand, to submit the realization of the pledge, not to the rules applicable in commercial matters, but to the common rules of the civil code (Article 2353, which refers to Articles 2346 to 2348). Thus, the creditor will not be able to sell the vehicle in accordance with the rules laid down in Article L. 521-3 of the Commercial Code but will have to follow the rules applicable to the civil pledge.
However, the necessities of staffing a file IT adapted for the implementation of this reform has made it necessary to postpone the entry into force of these measures to a date which will subsequently be fixed by decree and which cannot be later than 1 July 2008. Until the entry into force of the new Decree, the provisions of Decree No. 53-968 of 30 September 1953 remain applicable.


1.2.2.3. Redesign of the collateral
of intangible personal furniture


This recast is contemplated in section 12 of the order.
The pledge of intangible furniture is now covered in Chapter III of Subtitle II of the Title
After a general article defining collateral (Article 2355), the Ordinance no more specifically deals only with debt collateral.
The contributions of the reform relate to both the definition and the The basis of the debt pledge as its embodiment.


1.2.2.3.1. Definition and Base of Credence
of Credence


In accordance with the terminology convention adopted for the pledge, the name " Pledging " Is now limited to the assignment of intangible property (Section 2355).
Credence must be entered into " On pain of nullity " In writing. It can be used to guarantee future claims but also to cover future claims. In these cases, the act must allow their individualisation or at least contain elements (whose enumeration is neither exhaustive nor cumulative in the text) which allow this individualisation (Article 2356). In addition, Article 2357 specifies that where the pledge is for a future claim, the creditor " Acquires a right in the receivable upon the birth of the debt." The receivable will therefore be affected by the pledge.
Sections 2358 and 2359 allow the creation of a pledge for a specified period of time and add that it extends to the accessories of the debt.
Section 2360 specifies the The
on the enforceability of the pledge shall be laid down in Articles 2361 and 2362: the pledge shall become effective against third parties at the date of the act. This third-party effectiveness is therefore no longer subject to prior notification of the act to the debtor of the debt obligation.
On the other hand, to be enforceable against the debtor, the pledge must be notified to it. It should be noted on this point that only a notification is required and not a meaning. This solution is part of the desire to simplify the security rights required by Parliament under the enabling legislation of 26 July 2005. However, the adopted text does not preclude the use of service if the parties so wish.
Finally, if the creditor has chosen to notify the debtor of the debtor of the nantie claim, the creditor must make the payment between his or her Hands (section 2363) even if the nantie receivable is due before the secured claim. In that case, Article 2364, paragraph 2, states that the creditor will have to keep the sums paid as security on an account opened with an institution entitled to receive them for the purpose of returning them if the secured obligation is


1.2.2.3.2. Making the pledge


In the event of a failure of the grantor, the creditor may opt for the assignment of the debt, either by way of court or by way of the agreement (pact commissoire) or wait The due date of the secured claim (section 2365). The judicial sale is no longer foreseen, which is an expected simplification.
Article 2366 finally states that, in any event, if it has been paid to the creditor nanti a sum greater than the secured debt, it owes the difference to the Component.


1.2.2.4. The recognition of the
property retained as security


Section 13 of the order is intended to incorporate the rules for the retention-of-title clause into the civil code.
Thus, the order adds: Chapter IV of Title II of Title II of Book IV which contains several articles relating to the reservation of title clause, on the one hand, to define that security and, on the other hand, to lay down the conditions of formation and Regime.
The retention-of-title clause is defined as the " Suspends the translational effect of a contract until the full payment of the obligation which constitutes consideration thereof " (Article 2367).
As regards the conditions of Section 2368 specifies that the property reserve must be " Agreed in writing ".
The retention-of-title clause, however, retains a special status in the range of security rights since, unlike the pledge, it is not intended To inform third parties.
In addition, the order clarifies the rules applicable where the retention-of-title clause relates to fungible property (section 2369) and when it relates to a piece of furniture that has been incorporated To another property (section 2370). However, the solutions identified are not new.
Finally, to facilitate the realization of this security right, the project provides for a subrogation to the creditor's benefit on the sale price of the item or the insurance benefit in case of Destruction of the site. Thus, the creditor's rights may be exercised on that price if the sub-purchaser has not yet paid it to the debtor (section 2372).


1.2.3. Property rights


Article 14 of the draft order presents the contents of subtitle III of Title II of Book IV, which contains Article 2373, a chapter first entitled " Real Estate Privileges " Which includes Three sections, a section 1 entitled " Special privileges " Which includes section 2103, which becomes section 2374, section 2 entitled " General privileges " Which includes Articles 2104 and 2105 which become the Sections 2375 and 2376, section 3, entitled " Where privileges are to be registered " Which includes Articles 2106 to 2113 which, respectively, become Articles 2377 to 2386, a Chapter II entitled " De l' antichrèse " That includes Articles 2387 to 2392, a Chapter III entitled " Mortgage " Which consists of five sections, the first section entitled " General Provisions " Which includes Articles 2114 to 2120 which become Articles 2393 to 2399, respectively Section 2 entitled " Legal mortgages " Which has three subsections, sub-section 1 entitled " General Provisions " Which includes Articles 2121 to 2122 which become respectively Articles 2400 and 2401, sub-section 2 Titled " Special rules for the legal mortgage of spouses " Which includes Articles 2136 to 2142 which become Articles 2402 to 2408, sub-section 3 entitled " Special rules for the legal mortgage of persons in guardianship " That includes the 2145 sections that become sections 2409 to 2411, respectively, section 3 entitled " Judicial mortgages " Which includes section 2123, which becomes section 2412, section 4 entitled " Mortgages Conventional " Which includes Articles 2124 to 2129 which become Articles 2413 to 2418, Articles 2419 to 2424, Section V entitled " From the ranking of mortgages " Which includes section 2134, which becomes section 2425, a Chapter IV Titled " The registration of privileges and mortgages " Which has three sections, the first section entitled " The method of registration of privileges and mortgages " Which includes Articles 2146 to 2156 which become Articles 2426 To 2439, section II, entitled " De la cancellation et de la réduction des inscriptions " Consists of two subsections, subsection 1 entitled " General Provisions " Which includes Articles 2157 to 2162 which become Articles 2440 to 2445, the Subsection 2 entitled " Special provisions relating to legal mortgages of spouses and guardianship " Which includes Articles 2163 to 2165 which become Articles 2446 to 2448, section 3 entitled " Advertising of the Registers and the responsibility of the Conservatives " Which includes Articles 2196 to 2203-1 which become Articles 2449 to 2457, a Chapter V entitled " The Effect of Privileges and Mortgages " Which has two sections, section 1 entitled " Provisions specific to conventional mortgages ", which includes sections 2458 to 2460, section 2 entitled" General Provisions " Which includes Articles 2166 to 2179 which become Articles 2461 to 2474, a Chapter VI Titled " From Purge Privileges and Mortgages " Which has two sections, section 1 entitled " Provisions specific to conventional mortgages " Which includes section 2475, section 2 entitled " General Provisions " Which includes Articles 2181 to 2192 which become Articles 2476 to 2487, a Chapter VII entitled " From the Extinction of Privileges and Mortgages " Which includes section 2180 which becomes section 2488.
Section 15 lists in section 2373 Limit three real estate security rights now constituted by real estate privileges, antichresis and mortgage. It allows the real estate reserve which allows a seller, to guarantee its claim, to reserve the property of the property sold until the payment of the price by the purchaser.
Article 16 is relative to the antichresis. It includes sections 2387 to 2392 of the Civil Code.
Section 2387 defines antichresis as the assignment of a building as a guarantee of an obligation. It specifies that it takes away the dispossession of the person who constitutes it. Real contract, it is realized only by the divestment of the debtor, the remission of the thing.
Article 2388 makes it applicable to the antichresis, conventional security, certain provisions relating to the conventional mortgage that it is The base that extends to improvements in the building (section 2397, last paragraph), the required capacity of the grantor to dispose of the power to dispose, because if the debt is not paid on maturity, the property will be sold (Article 2413), or the principle according to which the antichresis may relate to rights affected by terms and conditions (Article 2414), or the solemnity of the contract which requires for its validity a notarial act (Article 2416), and finally The possibility of consenting to an anti-chresis in the guarantee of one or more claims, whether present or future, subject to the reservation, in the latter case, that the debt is determinable (Article 2421). Similarly, the possibility for the unpaid mortgagee to apply for justice that the property will remain in payment under a commissoire pact (sections 2458 to 2460) also applies to the antichresis.
Article 2389 governs the fate of the mortgagee The fruits of the anti-christy building by allowing the antichresistant creditor to charge them for the purpose of charging them on the interest and then on the principal of the debt. In addition, it imposes on the anti-chresist creditor an obligation to conserve and maintain the property by possibly using the perceived fruits. It retains the possibility of evading this obligation by returning the property to its owner.
Article 2390 enshrine a legal operation resulting from the notarial practice and validated by the Court of Cassation in a judgment delivered by the Court of Cassation. Third Civil Chamber on 18 December 2002: the antichrèse-leasing. This allows the anti-chresist creditor to lease the building not only to a third party but also to the third party that constituted the security right. This transaction does not cause the anti-chresist creditor to lose possession of the building because the tenant is only a tenuous holder under the law.
Section 2391 provides that the debtor cannot claim the return of the building
Article 2392 lists, in a non-restrictive manner, the causes of extinguishment of the rights of the anti-chresist creditor.
Section 17 clarifies in the article the mortgage base by indicating that The mortgage extends to the improvements and accessories that occur in the mortgaged property.
Section 18 amends the last paragraph of section 2414 relating to the mortgage of undivided real property. The mortgage of a share in one or more undivided buildings refers to the entire building to the extent that the interest is alloted from the undivided building at the time of the division, and the mortgage of a share in one or more undivided buildings Retain its effect only to the extent that the holder who consented to it is, at the time of the sharing, alloti of the undivided immovable. It then retains it to the full extent of that allotment, without being limited to the quota which belonged to the individual who granted it. The same is true if the building is lawful to a third party.
Section 19 amends section 2416. The mortgage can be granted only by notarial act. The use of two notaries or one notary and two witnesses shall be deleted for the sake of simplification.
Article 20 brings together Articles 2419 to 2424.
Article 2419 lays down the principle that the mortgage can only be granted on
Article 2420 reserves three legal exceptions to the principle set out in the preceding Article: the absence or insufficiency of present and free property which permits the allocation of property subsequently acquired, the loss or the Degradation of the building subject to the mortgage as it ensures that the debt is not sufficient, the possibility of mortgaging construction started or even simply projected onto the property of others.
Article 2421 provides that all Mortgage may be granted for the security of one or more current or future claims and that each claim must be determined or at least determinable if it is a future debt. The requirement for a reference to the cause in the act is now explicit.
Section 2422 specifies the requirements of the rechargeable mortgage.
One of the major innovations in this order is to introduce The rechargeable mortgage in the French law of the conventional mortgage as in other European laws such as Belgian law. Article 2422, of a public order, specifies the characteristics.
Its mechanism is based on the ability to offer successively or simultaneously the same mortgage as security for several claims present or future. Each secured claim benefits from the rank conferred by the original registration.
The rechargeable mortgage is conceived as a variant of the conventional conventional mortgage and calls for adjustments to the principle of the speciality of the debt without However, the necessary protection of the debtor is called into question.
The reloading of the mortgage is only an option that must be provided for in the deed of the mortgage. It is necessarily constituted for a maximum amount provided for in the instrument of incorporation pursuant to Article 2423 applicable to all conventional mortgages, including the rechargeable mortgage and the guarantee of future claims. The reloading may take place for the benefit of the originating creditor or any other creditor but within the maximum limit of the repayments made. The reload agreement must be passed by notarial act. It shall be published in the form of a statement in the margin of inopposability to third parties.
Article 2423 states that the mortgage is always granted for the capital, up to a fixed sum, which the notarial act refers only to a declaration of invalidity. The mortgage extends from full interest to interest and accessories. This is the constant right.
The same article provides for the possibility of termination granted to the grantor where the mortgage guarantees future and indefinite claims.
Article 2424 provides the possibility for the mortgagee Subrogation of another creditor in the mortgage and retain its claim. It still provides for the possibility for the mortgagee to assign his or her registration status to a post-ranking creditor.
Section 21 supplements section 2425 by a paragraph that provides that the legal mortgage registered in the The interval between the initial entry of the statement on the margins of a reloading agreement is, in that case, deemed to be of a rank earlier than that of the reload agreement. This provision concerns the functioning of the rechargeable mortgage.
Article 22 amends Article 2427 to specify that in the case of property seizure or the procedure for the safeguarding, judicial recovery or judicial liquidation, or Still in the event of a procedure for dealing with situations of indebtedness of individuals, the registration of privileges and mortgages shall produce the effects regulated by the provisions of the Code of Civil Procedure and the provisions of Titles II, III and IV of the Book VI of the Commercial Code.
In addition, it expressly provides that the registration of mortgages shall be governed in the departments of the Bas-Rhin, the Haut-Rhin and the Moselle by special
. To allow third parties to be aware of the rechargeable character of the mortgage that is constituted. The eighth paragraph provides that the registration slip filed for the conservation of mortgages will expressly mention the rechargeable character of the mortgage applied for.
The II of Article 23 transforms the reference into
Article 24 amends Article 2430 by inserting a new paragraph which states that reload agreements shall also be published in the form of a margin reference.
Article 25 provides for an exception to Article 2432 in Giving the right to the creditor to be colloqued for all the interests, in the same rank as the principal, having regard to the characteristics of the mortgage.
Article 26 amends Article 2434 with the maximum duration of Registration for thirty-five to fifty years and reduces the extreme effective date of registration from two to one year after the last deadline.
Section 27 supplements section 26. It is provided for in Article 2436 that if the time limits set out in Articles 2434 and 2435 (ten years) are not complied with, the registration shall have no effect beyond the date of expiry of that period.
Article 28 supplements Article 2440 by specifying that the A creditor who has not published the reloading agreement in the form of a margin statement will be opposed to the cancellation of the registration. This article completes the operation of the rechargeable mortgage.
Section 29 supplements section 2441 in the sense of double simplification to reduce the cost of release.
This is to remove unnecessary controls and To reduce, where possible, the formalism prior to release.
It is expressly stated that the control of the custodian of mortgages relating to the act necessary for release is limited to its formal regularity with the exclusion of Any control over the validity of the act already performed by the notary.
The formalism of the act required for release is in some cases lighter. In addition to the authentic act attesting to the consent of the interested parties, the possibility of requesting the cancellation of the registration by means of the deposit in the office of the curator of an authentic copy of the notarized notarial act is added. The creditor's agreement to the cancellation.
Section 30 includes sections 2458 to 2460.
Section 2458 provides that the mortgagee may, instead of engaging in a property seizure procedure in the event of non-payment, apply to the court The allocation of the building as long as it is not the principal residence of the debtor.
Section 2459 authorizes the conclusion of an agreement in the mortgage agreement if the building does not constitute the residence
Section 2460 provides for an estimate of the building by an amicable or legal expert and the possible payment of a relief if the value of the property exceeds the amount of the debt.
Section 31 creates an item 2475 which devotes an out-of-court settlement that allows a candidate to purchase a building that is already free from any mortgage. The debtor agrees with its creditors to assign the transfer price to their selflessness. The effect of this payment is to purge the suite of resale rights. In the absence of an agreement, the purge procedures provided for in the following sections of the Civil Code are carried out.
Section 32 includes the amendment of sections 2478, 2479 and 2480 purging.
Section 2478 is amended to this effect. That the three-column table to be produced in the purge procedure is replaced by a summary mortgage statement showing the actual loads that complete the building.
It is inserted in section 2479, On the declaration of the recipient or donee in the purge procedure, an accuracy on the building received in donation. The described device is completed to avoid confusion.
Finally in section 2480, is removed an obsolete distance: myriameters, to calculate the time limit for the requisition of the requisition to the new owner.
Section 33 completes Article 2488 on the extinguishment of privileges and mortgages, to take account of the creation of the rechargeable mortgage (1 ° and 2 °). It is added a 5 ° indicating that conventional mortgages are extinguished by the termination allowed to Section 2423 for mortgages for the security of one or more future receivables and for an indefinite period.


2. TITLE II: PROVISIONS AMENDING
THE CONSUMER CODE


Sections 34 to 41 amend the consumer code to introduce provisions governing the rechargeable mortgage and the life loan Mortgage.
Section 34 introduces changes to the consumer code.
Section 35 supplements section L. 141-1 by two sections to make it applicable to the mortgage credit secured by a rechargeable mortgage and In
interest of increased protection, Article 36 supplements the 1 ° of Article L. 311-3 in order to make applicable the provisions of Chapter I relating to consumer credit, to mortgage credits at the Consumption concluded in the context of a rechargeable mortgage.
Article 37 was referred to in the presentation of Article 11.
Article 38 amends the heading of Chapter III of Title I of Book III, as well as that of Section 2 of this Article. Chapter to introduce the concept of " Personal security " Instead of the term "
Article 39 was mentioned in the presentation of Article 6 of the Ordinance.
Article 40 amends section 6 of Chapter III of the Title Book the book III. The title of the section is changed to " Credit guaranteed by a rechargeable mortgage ". It includes Articles L. 313-14 to L. 313-14-2.
Article L. 313-14 lays down the scope of Section 6 which applies to credit operations granted on a regular basis by any natural or legal person reporting either Provisions of Chapter I relating to consumer credit, the provisions of Chapter II relating to immovable property credit and guarantees by a rechargeable mortgage. It specifies that the operations provided for in Article L. 311-9 cannot give rise to a credit guaranteed by a rechargeable mortgage.
Article L. 313-14-1 regulates the conclusion of the credit agreement under penalty of criminal penalties provided for in Article L. 313-14-2.
In the conclusion of the contract, the protection of the consent of the borrower is provided in particular by Article L. 313-14-1, which requires the writing and handing over to the borrower of a prior offer accompanied by a Document entitled " Mortgage situation " Containing mandatory information notices, such as the duration of the mortgage registration, the identification of the immovable property, the purpose of the guarantee and its estimated value at the date of the agreement Mortgage, the amount of the original loan subscribed, if any, the amount of the loan (s) subsequently subscribed, an evaluation by the lender of the cost of reloading the mortgage, an evaluation by the lender of the cost
Article L. 313-14-2 sanctions non-compliance with the provisions of Article L. 313-14-1 by a fine of EUR 3 750.
In addition, the creditor is deprived of the right to interest and the borrower is only required to Repayment of capital according to schedule.
Section 41 creates a Chapter IV in Title I of Book III entitled " Mortgage Life Loan " Which is divided into eight sections and regulates the mortgage.
Section 1 Titled " Definition and scope " Includes sections L. 314-1 and L. 314-2.
Section L. 314-1 defines mortgage lending as the contract by which a credit institution or a financial institution consents to a mortgage. Physical person a loan in the form of capital or periodic payments, secured by a mortgage on a property of the borrower for exclusive use of the dwelling and whose principal and interest repayment cannot be To the death of the borrower or to the assignment or dismemberment of the mortgaged property.
Article L. 314-2 only nullified the needs of a professional activity.
Section 2 entitled " Business Practices " Includes Articles L. 314-3 and L. 314-4.
Article L. 314-3 regulates advertising which must be fair and informative. Mandatory mentions are provided for, and it is expressly forbidden to mention that a loan can be granted without any information to assess the financial and heritage situation of the borrower as well as the indication The additional resource offered by the loan if it is not followed by information on the long-term terms of the transaction. Finally, it is anticipated that the advance credit offering must be separate from any medium or advertising material.
Section L. 314-4 prohibits direct selling for any mortgage lending operation.
Section 3 entitled " Contract of Credit " Includes Articles L. 314-5 to L. 314-8.
In the conclusion of the loan contract, the protection of the borrower is ensured by the combination of an obligation of information, a period of reflection and the drafting of an act Notary required for a declaration of invalidity.
Thus, Article L. 314-5 provides for the existence of a prior offer which must mention the main elements of the loan. This is part of an informative formalism that guarantees the informed consent of the borrower to the loan.
In accordance with Article L. 314-6, this offer must be maintained for a minimum of thirty days.
This protection of the Consent would not be complete without the establishment of a ten-day cooling-off period provided for in Article L. 314-7 during which the borrower cannot accept the offer. In addition, the drafting of a notarized deed for annulment under Article L. 314-7 allows the ministerial public officer to exercise his duty to advise on the consequences of both the heritage and the inheritance of the act under consideration.
Article L. 314-8 recalls the obligations of the borrower who must bring to the building all the care of a good family father. It lays down the principle that the benefit of the term is ruled out when the debtor has decreased the value of the security right or when it changes the assignment of the mortgaged property or denies the mortgaged access to the mortgaged property to the creditor Its proper maintenance and preservation.
Section 4 entitled " Debt-to-debt " Includes section L. 314-9 which sets out the principle of a debt cap on the value of the building estimated at the end of the term. It states that if the debt is less than the value of the building, the difference between that value and the amount of the debt is paid, as the case may be, to the borrower or his heirs. In the case of the alienation of the property, the value of the building shall be equal to the value indicated in the deed of assignment subject to the provisions of Article L. 314-14 which, in particular, provides for the estimation of the property by an expert designated by the parties of a Common agreement or on request.
Section 5 entitled " Early repayment " Includes Articles L. 314-10 to L. 314-12.
Article L. 314-10 provides for the possibility of full or partial repayment of the loan. The creditor may, however, require compensation which, without prejudice to the application of Article 1152 of the Civil Code, is fixed by decree in the Council of State.
Article L. 314-11 indicates that early repayment cannot give rise to the perception No compensation or cost to the borrower other than those referred to in Article L. 314-10.
Article L. 314-12 gives the borrower the opportunity to request a suspension or an amendment to the payment schedule in the case of Periodic payments of capital. These developments give rise to a new state of periodic payments and interest accrued on these amounts.
Section 6 entitled " "Operation Term" Includes Articles L. 314-13 and L. 314-14.
When the operation is unwound In the event of the death of the borrower, Article L. 314-13 limits the debt of the heirs to the value of the estimated building on the day of the opening of the estate, as necessary by an expert appointed amicably or judicially. The heirs may pay the debt thus capped. In the event of non-payment, the mortgagee has the option either to continue the seizure and sale of the immovable property under the conditions of common law fixed by the provisions on civil enforcement proceedings or to be awarded the Ownership of the complex by a court decision or under an agreement, whether or not the building has been the principal residence of the borrower. The same option is open to the creditor in the presence of a vacant estate.
Where the transaction is disposed of by reason of the disposal of the property by the borrower, section L. 314-14 provides for the notification of the project to the lender of So that in the event of disagreement over the value of the property, the mortgagee can request an estimate by expert. If the value of the property is less than this estimate, the lender's claim is capped at either the auction price or the value of the expertise in the case of a judicial award of the property or under a commissoire pact.
Section 7 Titled " Sanctions " Includes Articles L. 314-15 to L. 314-18.
Article L. 314-15 punishes civilly the fact of not seizing the borrower from a compliant prior offer. The disqualification of the right to interest may be imposed by the judge.
Article L. 314-16 criminally incriminates the same facts. Sanctions are criminal. The same penalties shall apply to the advertiser for which an advertisement does not comply with the provisions of Article L. 314-3.
Article L. 314-17 punishes the failure to return the sums due in accordance with Article L. 314-9 to The maturity of the term when the debt is less than the value of the building.
Article L. 314-18 punishes non-compliance with the provisions of Article L. 314-4.
Article L. 314-19 provides for additional penalties for offences under Article L. 314-4. Section L. 314-18.
Section 8 entitled " Application Text " Article L. 314-20 specifies that the conditions of application of Chapter III are laid down by decree in the Council of State.


3. TITLE III: PROVISIONS AMENDING
THE CODE OF COMMERCE


Sections 42 to 49 change the trade code.
Section 42 is a presentation article.


3.1. Provisions relating to
credit secured by a rechargeable mortgage


Article 43 supplements Chapter IV of Title II of Book V of the Commercial Code by Article L. 526-5 which makes applicable Articles L. 313-14 to L. 313-14-2 of the code of consumption to small entrepreneurs insofar as they are in a situation of weakness comparable to that of the consumer stricto sensu. Thus any natural person registered in a register of legal professional advertising, any natural person carrying on a professional or independent activity as well as the sole associate manager of a limited liability company Benefit from the protective provisions of the consumer code when entering into a loan secured by a rechargeable mortgage on the building where the person has fixed his or her principal residence.


3.2. Stock pledge provisions


A new legal instrument is introduced in the safeguards part of the trade code.
The expression " Pledging inventory " Was preferred to collateral Used by law, in order to be consistent with the overall reform of the security rights, taking into account the physical nature of the stocks.
A classic concept, the pledge relates to a new and specific object, the stocks, the particularity of which is Is to present a fungible and circulating character.
This is why the creation of this conventional security right is accompanied by a number of guarantees, protecting the interests of the creditor and the debtor, which distinguish it from the
These provisions are set out in Chapter II of Title III of the Ordinance which inserts into the trade code a new chapter on the pledging of stocks.
Article 44 of this Ordinance inserts in Title II of the Book V of the Code of Commerce a Chapter VII composed of eleven Articles (Articles L. 527-1 to L. 527-11).
New Article L. 527-1 defines the pledge of stocks. It may relate to present or future property. The use of this security as a creditor is reserved for credit institutions, which only have the means to assess the consistency of the given object as collateral. The debtor may be any legal person of private law or natural person in the performance of his or her professional activity.
The vital nature of the stocks for the continuity of the business requires the maintenance of the stocks to the free This
also provides for a certain formalism as a condition of validity in order to protect the parties and strengthen legal certainty. As with the pledge of trade funds, a writing is required. As in the case of the pledging of professional claims, a number of references are required.
The reference to the provisions of common law relating to the pledge of tangible furniture provides for the guarantee of stocks belonging to others (2335 of the code Civil).
The compromise pact is prohibited: the parties cannot agree when establishing the pledge that the winning creditor will become the owner of the stocks in the event of the debtor's default (Article L. 527-2).
The new Article L. 527-3 specifies the concept of stock. This definition is based on the definition provided for in Decree No. 83-1020 of 29 November 1983 on the accounting obligations of traders and certain companies. These are the raw materials, the goods and the goods, which are excluded from the base of the pledging fund.
The importance of this legal commitment makes it necessary to advertise it. For this reason, its entry in the Register of Trade and Companies is consubstantial to its existence (Article L. 527-4).
The rules on collective procedures provided for in Articles L. 632-1 to L. 632-4 shall apply. Therefore, Article 49 of the Order amends Article L. 632-1 accordingly by expressly adding the word: " Pledge ". The pledge of inventory later than the date of termination of the debtor's payments is thus nil.
The effects of the pledge of inventory in respect of the creditor are contemplated in Article L. 527-5.
The non-refunded creditor has a right of Preference is given to the stocks involved: it may order the forced sale of the stocks in order to exercise its privilege over the price. Its right of preference allows it, in particular, to pass before unsecured creditors and those enjoying general privilege. Among registered creditors, the rank is determined by the date of registration.
A mechanism of real subrogation allows the replacement of new inventory items to the old on the day of their release.
The Earner Creditor a Also the right to be informed of the activity of the debtor. To this end, it may, at its own expense and at any time, record the status of the stocks committed. In order to facilitate the control of the creditor on the stocks, the debtor shall keep to its disposal a statement of the stocks engaged and the accounting of the transactions relating to
. Stocks (Article L. 527-6). As required by the reference to the provisions of Article 1137 of the Civil Code, it is required to provide all the care of a good family father.
New Article L. 527-7 sets out the effects of the pledge in respect of the debtor
The creditor realizes that the value of the stocks has decreased by 20 %, it can put the debtor in a position to reinstate the pledge or to refund an amount corresponding to the value of the missing stocks. Again, this choice allows the creditor to have the certainty of being paid on the missing part or giving a little time to the debtor, the reduction of stocks that may be only on an ad hoc basis. A Council of State decree will specify the procedure. This percentage is a compromise between legal certainty and the pursuit of business life.
The parties may provide that the basis of the pledge is based on partial repayments made (Article L. 527-8).
The debtor May also pay its debt before the expiry of the term (Article L. 527-9). In this case, it will benefit from the remaining interest to maturity.
At the end of a protective procedure against the debtor, Article L. 527-10 provides that the secured creditor may make the sale of the debtor (article 2346 of the Civil Code) or the judicial allocation of stocks (Article 2347 of the Civil Code).


3.3. Miscellaneous Provisions


Sections 45 to 49 allow the consequences of changes in the civil code to be drawn and adapted to the trade code. Thus, sections 45 and 46 amend Articles L. 521-1 and L. 521-3. Article 47 supplements Article L. 622-7 to clarify that the opening of a safeguard procedure is an obstacle to the conclusion and implementation of a pact commissoire. Article 48 rewrites Articles L. 624-16 to L. 624-18 of the trade code relating to the retention-of-title clause in the case of a collective procedure in order to harmonise these rules with those inserted in the civil code (cf. Article 13 Of the order). Article 49 supplements the list of invalid acts concluded during the suspect period of Article L. 632-1-I of the Trade Code by expressly adding the " Token ".


4. TITLE IV AND TITLE V: MISCELLANEOUS, TRANSITIONAL AND FINAL PROVISIONS



Article 50 draws the consequences of the amendments made in the current Civil Code. Thus, in the light of the new provisions in section 2334, section 1422 of that code is supplemented by a second paragraph as discussed in the review of section 11 of the order
Coordination.
Article 52 which amends the Act of 1 June 1924 bringing into force French civil law in the departments of Bas-Rhin, Haut-Rhin and Moselle, introduces Articles 45-1 to 45-4 in the latter The particulars of the rechargeable mortgage and those of the local land advertising system. It also proceeds in Article 48 of the Act of 1 January 1924 to the necessary coordination between the provisions of the Civil Code and those relating to land advertising. Finally, it amends section 64 of the Act to simplify the release of the mortgage registration.
Section 53 was referred to at the time of section 6 of the Order.
Section 54 contains a general provision for Allow for the modification of references to the articles of the civil code which are re-numbered in the new book IV.
Article 55 clarifies that, in the current legislative and regulatory provisions, the words " : " Pledge " And " Secured creditor " Are replaced by the words: " Pledging " And " Wealthy creditor " Where the security relates to intangible personal property and vice versa: Pledging " And " Nanti creditor " Are replaced by The words: " Pledge " And " Secured creditor " Where the security relates to tangible personal property.
The purpose of section 56 is to repeal the provisions that are intended to be replaced by new Book IV of the Civil
. Conditions for the implementation of the reform in Mayotte, Wallis and Futuna and in New Caledonia.
Articles 58 and 59 specify transitional rules of law.
Thus, Article 58 states that the entry into force of Articles 2351 to 2353 of the Code A motor vehicle pledge calendar is deferred to a date that will be specified by Order in Council and cannot be later than July 1, 2008.
Finally, section 59 provides that a mortgage that was previously entered into May be converted into a rechargeable mortgage, subject to the drafting of an amendment providing that the mortgage may be assigned to the guarantee of other claims under the conditions of Article 2422 of the Civil Code And published in the forms provided for in Article 2428. This amendment shall be unenforceable against creditors who have entered a mortgage before the date of entry into force of this order and those who have entered into force between that date and the registration of the rider.


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This is the subject of this order that we have the honour to submit to your approval.
Please accept, Mr. President, our deep respect.


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