Ordinance of 15 September 2021 reforming the law of Securities (“sûretés”)

The Ordinance n°2021-1192 of 15 September 2021 reforming the law of Securities (“sûrtetés”) has been published. (Ordinance taken by the government on the empowerment of the law of 22 May 2019, known as the « loi PACTE »).

Its provisions will enter into force on 1st January 2022 (except for some which require implementing regulations and which will enter into force at a later date, but no later than 1st January 2023).

This reform aims to modernize and unify the system of securities, in particular by bringing together the rules of securities law, which are dispersed in various codes and laws, within the Civil Code. It also aims to strengthen the effectiveness of the law on securities, while ensuring a balance between the interests of creditors and those of debtors and guarantors.

Many securities are reformed: surety bond (“cautionnement”), movable privileges, common law pledges, pledges of receivables, retention of title, pledges of securities accounts, guarantees on business assets, etc.

The ordinance also repeals certain special securities that have become obsolete or outdated, as provided for in the Commercial Code, such as commercial pledges, stock pledges and oil warrants (the common law pledge regime will apply).

The most significant changes have been made to the surety bond (“cautionnement”) regime (this is fortunate as this security was not reformed in 2006 and has been the subject of extensive litigation for several years), including:

• possibility for the guarantor to raise against the creditor exceptions that are purely personal to the debtor,
• modification of the penalty for a disproportionate guarantee by removing the total forfeiture and replacing it with a reduction of the guarantee,
• the possibility of concluding a guarantee by electronic means,
• unification of the regime of handwritten mention within the Civil Code by requiring it for all natural persons as guarantors, regardless of the status of the creditor (professional or not),
• clarification of the fate of the guarantee in the event of mergers or splits.

In the case of pledges of business assets, the publication formalities have been simplified. In addition, failure to register the pledge within the prescribed period will no longer be sanctioned by nullity, but by the inopposability of the act.

In the case of pledges of financial securities accounts, the parties will now be able to exclude the fruits and proceeds from the basis of the security from the moment the security is created.

In addition to the amendments and deletions of security interests, the Ordinance introduces two new security-property in the Civil Code: the assignment of a claim as security (excluding security trusts) and the assignment of amount of money as security (cash pledge).

It should be noted that one of the main innovations of the ordinance is the dematerialization of all securities, which can now all be concluded by electronic means.

Finally, in the near future, a decree will also establish a single register of movable securities, freely accessible on the Internet, in accordance with the best international standards (its purpose being to enable creditors to gain information all the guarantees already provided by potential borrowers).