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The « loan » is the contract by which a person gives to another, on a precarious basis, an object, equipment, or materials, goods, or a sum of money, at the expense of restitution at the term they agree. . The borrower is a holder.

-The Civil Code provides for three types of loan: the loan for use which before Law n ° 2009-526 of 12 May 2009 was also called « commodat », the consumer loan and the loan at interest. In the first case, the borrower must return to the lender the very thing that was entrusted to him and this, without being able to dispose of it, while in the second case, the borrower owes only one thing of the same kind, of same quantity and same quality. These two contracts are in principle free of charge. The third type of loan is the loan of money.

-The delivery of a sum of money is not sufficient to justify the obligation for the person who receives it, to return it. The trial judge must find that the proof of the disputed loan is reported in accordance with the rules governing the proof of legal acts (1st Civil Chamber, April 8, 2010, appeal: 09-10977, BICC n ° 727 of September 15, 2010 and Legifrance) . The loan contract is definitively formed not on the date of the subscription of the recognition of debt but on the date of delivery of the borrowed funds (1st Civil Chamber February 9, 2012, appeal n ° 10-27785, BICC n ° 762 of May 15, 2012 and Legifrance). When the borrower having taken out an acknowledgment of debt, excuses the non-delivery of the borrowed sums, he then raises a plea based on the absence of cause. It is then a question of knowing who, the borrower or the lender, must prove the payment of the borrowed sums. The First Civil Chamber judges that Article 1132 of the Civil Code, providing that the agreement is valid even though the cause is not expressed, this provision places the proof of the default or the wrongfulness of the cause at the expense of that who invokes it: in this case, at the expense of the borrower (1st Civil Chamber, June 19, 2008, appeal n ° 06-19.056, BICC n ° 678 of November 15, 2008; same Chamber, October 8, 2009 , appeal n ° 08-14625, BICC n ° 178 of March 15, 2010 and May 4, 2012, appeal: 10-13545 and Legifrance). And the First Civil Chamber to add: the rule set out by article 1132 of the civil code, establishes a presumption that the cause of the obligation invoked exists and that it is lawful. This rule does not require, for its application, the existence of an act meeting the formal conditions prescribed by article 1326 of the civil code (1st Civil Chamber January 12, 2012 appeal n ° 10-24614, LexisNexis and Legifrance) . See also the notes of M. Ribeyrol, Madame Pouliquen and that of Madame Le Gallou referenced in the Bibliography below.

-Borrowers can take out insurance in the event that, following certain events, such as death, illness, or loss of employment, they are no longer able to meet the loan maturities. When a loan is taken out by one of the undivided purchasers of real estate and this loan is covered by insurance, the regulation provided for in the insurance contract has the effect of extinguishing, up to the amount of the the insurer, the contribution debt incumbent on the insured concerned. If therefore the co-owners sell the property purchased under the above conditions, the co-owner victim of a claim supported by the insurance guarantee, is justified in maintaining that the undivided debt has been extinguished using personal funds and to obtain from the notary responsible for distributing the price between the co-owners, to charge to his account the amount of the sums paid to him by the insurance company. (1st Civil Cambre December 15, 2010, appeal: 09-16693, BICC n ° 740 of April 15, 2011 and Legifrance).

-The loan at interest relates to sums of money. It is subject to meticulous regulation as to the stipulation of interests which must be the subject of a writing. These regulations cover both the drafting of the loan deed, the calculation of interest and their capitalization. It is decided in this regard, that the cost of health insurance required by the lender on the occasion of obtaining a real estate loan must enter the calculation of the TEG (overall effective rate). (1st Civ. November 13, 2008, BICC 698 of March 15, 2009) and that, the error tainting the overall effective rate whose mention is required in a loan contract is sanctioned by the substitution of the legal interest rate, at contractual interest rate. (1st Civ. – September 19, 2007, BICC n ° 673 of December 15, 2007). It follows from the provisions of article L321-8 3 ° of the consumer code that the loan offer must indicate in addition to the amount of the credit, its total cost and its rate defined in accordance with article L313-1 of the same code. . The trial judge cannot reject the borrower’s request for the forfeiture of the right to interest of the lender requested on the basis of non-compliance with the provisions relating to the TEG. Is based on an incorrect reason, the decision of the trial judge according to which article L. 312-33 cannot be invoked for the erroneous calculation of the TEG (1st Civil Chamber, September 30, 2010, appeal n ° 09-67930, BICC n ° 734 of January 15, 2011 and Legifrance).

-The sum paid by the borrower for the constitution of a guarantee fund created by a mutual guarantee company to guarantee the proper execution of the loan, and the amount of which is determined when the loan is concluded, is taxed as a condition for granting it.

-On the other hand, the amount paid by the borrower for the constitution of a guarantee fund created by a mutual guarantee company to guarantee the proper execution of the loan, and the amount of which is determined when the loan is concluded, is imposed as a condition for granting it so that it must be taken into account for the calculation of the overall effective rate.

-Article L. 312-33 of the Consumer Code may be invoked in the event of incorrect calculation of the TEG. (Cass. 1st civ. September 30, 2010, n ° 09-67. 930: JurisData n ° 2010-017056, LexisNexis). See also: Cass. 1st civ. Nov 23, 1999: JurisData No. 1999- 004035; JCP N 2000, n ° 14, p. 611, note S. Piedelièvre. The TEG must be calculated on the basis of the calendar year, however nothing prevents the parties from agreeing to a conventional interest rate calculated on another basis for example, on a « bank year » of 360 days (Chamber commercial, March 24, 2009, appeal: 08-12530, BICC n ° 707 of September 15, 2009 and Legifrance). Decree No. 2011-135 and No. 2011-136 of February 1, 2011 determine new methods for calculating the overall effective rate and specify the obligations of banks and credit intermediaries in relation to the borrower’s pre-contractual information, information which must appear in the contract, they also specify the specific rules for overdraft operations.

-When the sales relate to real estate for residential use or professional residential use and they are carried out with the help of a loan, the contract is that they have concluded under the suspensive condition of the  » obtaining the loan (s) which provide the financing. The clause « subject to acceptance by borrowers’ insurance » does not affect the firm nature of the credit offer characterizing the obtaining of a loan within the meaning of Article L. 312-16 of the Code. of consumption. When the buyers produce a certificate from the credit institution establishing that they had obtained the loan requested prior to the expiry date of the validity of the condition precedent, the condition precedent for obtaining the loan must be considered as fulfilled ( 3rd Civil Chamber June 23, 2010 appeal n ° 09-15963, BICC n ° 731 of November 15, 2010 and Legifrance). In the event of the sale of a house under the suspensive condition of obtaining a loan, except by the sellers to provide proof that the beneficiaries have prevented the fulfillment of the condition, the refusal of the loan results in the return of the security deposit paid by the people who purchased (3rd Chamber October 6, 2010, appeal n ° 09-69914, BICC n ° 735 of February 1, 2011 and Legifrance). See the note by Mr. Jean-Baptiste Seube, referenced in the Bibliography below and 3rd Civ. May 26, 2010, appeal n ° 09-15. 317, Bull. 2010, III, n ° 103.

-The prescription of the action for nullity of the stipulation of conventional interest initiated by the latter due to an error affecting the overall effective rate, runs, as well as the exception of nullity of such a stipulation contained in a deed of loan having received a start of execution, from the day when the borrower knew or should have known this error (Cass. 1st civ. June 11, 2009, n ° 08-11. 755). In the case of a loan, the starting point of this prescription is the date of the agreement (Commercial Chamber May 17, 2011, appeal n ° 10-17397, BICC n ° 749 of October 15, 2011 and Legifrance). Under Articles L311-37 of the Consumer Code, and 2246 of the Civil Code, it is judged that the summons given even before an incompetent judge interrupts the prescription, and that this rule applies to all time limits for acting and in all cases of incompetence (1st civil chamber, July 9, 2009, appeal: 08-14571, Legifrance). See the note by M. Lasserre Capdeville referenced in the Bibliography below.

-The rules of public order relating to the determination of the two-year foreclosure period provided for by article L311-37 of the Consumer Code cannot be defeated by entering a current account or the expiry of a loan, or, in the event of an overdraft being granted, an amount exceeding the amount (1st Civ. – January 22, 2009, Appeal number: 06-15370, BICC n ° 703 of June 1, 2009 and Legifrance) See the commentary by M. Creton and those by Messrs Piedelièvre and Rachel on the office of the judge and on the public order nature of consumer law. These notes and comments are referenced in the Bibliography below.

– In accordance with Article 1147 of the Civil Code, the Civil Chamber of the Court of Cassation considers that the Court must specify in its decision, whether the borrower who calls into question the liability of the company which granted him the loan, was or was not an informed borrower and, if, in accordance with the duty of warning to which it was bound, it could prove that it had fulfilled its information obligation due to the borrower’s financial capacities and the risks of the indebtedness that he ran the granting of loans. (2 judgments of the Mixed Ch. June 29, 2007, Report of Mrs. Betch and Opinion of Mr. Maynial First Advocate General, BICC n ° 667 of September 15, 2007, case law reiterated by the 1st Civil Chamber on December 6, 2007, BICC n ° 679 of April 1, 2008). And in a judgment of April 30, 2009 (1st civil chamber, N ° of appeal: 07-18334), the Court of Cassation ruled that « the bank which grants a loan to an uninformed borrower is bound to it, when the conclusion of the contract, a duty of warning in consideration of its financial capacities and the risks of indebtedness arising from the granting of the loan, from which it cannot be dispensed with by the presence alongside the borrower of ‘an informed person, it does not matter whether he is a third party or a party. By determining, without specifying whether the borrower was an uninformed borrower and, if so, whether, in accordance with the duty of warning to which he was bound towards him when the contract was concluded, the credit institution justified having satisfied this obligation because of the financial capacity of the borrower and the risks of indebtedness resulting from the granting of the loan, the trial judge deprived his decision of legal basis (1st civil chamber, November 19, 2009, appeal : 07-21382, Legifrance.) But, in a case in which it was alleged that the bank had failed in its duty of warning for having granted, without verification, loans disproportionate to the income of borrowers, the First Chamber of the Court of Cassation ruled that the Court of Appeal has, without reversing the burden of proof, nor having to explain itself on a tax notice established after the granting of the loans, noted, in view of so many other opinions taxation than an information sheet information filled in by the borrowers at the request of the bank, which could not be accused of having relied on erroneous information on the composition of their real estate assets knowingly provided by them, that the bank had verified the financial capacities of the borrowers, which allowed them to meet the commitments they had subscribed to (1st civil chamber, June 25, 2009, appeal n ° 08-16434, BICC n ° 713 of December 15, 2009 and Legifrance). This judgment can be compared to the one delivered by the Commercial Chamber, which specified that the bank which grants a loan cannot be criticized for having failed to fulfill its obligation to warn if the borrowers have not, for their part, enabled the lender to ascertain the existence of a risk arising from the granting of this credit. (Commercial Chamber 23 September 2014, appeal n ° 13-20874, 13-22188 and others, BICC n ° 813 of December 15, 2014 and Légifrance)

-But if the examination of the situation of the borrower (s), showed that at the date of the conclusion of the contract, the credit was suitable with regard to their financial capacities and the risk of indebtedness arising from the granting this loan, the bank was not bound by a duty to warn them, and the trial judge did not have to carry out ineffective research (Commercial Chamber, July 7, 2009 , appeal n ° 08-13536, BICC n ° 714 of January 15, 2010 and Legifrance). This being said, insofar as it finds that the borrower was or was not an informed borrower and, that the bank has justified that it has satisfied its obligation to inform, the judgments of the trial judge relating to the fact of knowing whether or not the borrower was an informed or uninformed borrower, and whether or not the credit granted by the lender was suited to the borrower’s financial capacities and therefore the bank was or was not required to warn, are sovereign assessments: they cannot give rise to an appeal (1st civil chamber, November 19, 2009, appeal n ° 08-13601, BICC n ° 721 of May 1, 2010 and Legifrance). Consult the notes of M. Delpech and M. Creton referenced in the Bibliography below

-When it receives a request for repayment of a loan, the term of which has not been agreed between the parties, it is up to the judge to fix the date of this due date (commercial chamber January 26, 2010, appeal n ° 08-12591, BICC n ° 724 of June 15, 2010 and Legifrance) See the note by M. Heugas-Darraspen referenced in the Bibliography below and 1st Civ. January 19, 1983, appeal n ° 81-15. 105, Bull. 1983, I, n ° 29
On consumer loans see:
Consumption (Law of

-Documentary credit.

-Renewable credit.

– Revolving credit.)

Bond (bond issues)

-Default interest

-Anatocism

-Ready

current account.
Texts
Money lending: unilateral contract or synallagmatic contract ?, Aix Marseille III thesis, 1998.
Avena-Robardet (V.), Starting point for the prescription of the invalidity action of the TEG. Recueil Dalloz, n ° 25, July 2, 2009, Case law news, p. 1689-1690, note about 1st Civ. June 11, 2009.
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