Si le créancier, bénéficiaire d'une

Application pratique:

Under this 2009-11-19 ruling (Cass. civ., no. 08-19.173), a bank is not at fault for failing to realise a mere promise of mortgage or pledge, because creating such security depends solely on the borrower's own action, unlike a provisional security the creditor could make definitive itself. Guarantors should therefore check, before signing, whether any companion security is an actual registered mortgage/pledge or just a promise — only the former creates an enforceable obligation on the creditor. If you are already a guarantor in this situation, do not expect a court to reduce your liability on this ground; instead negotiate upfront for the mortgage to be registered simultaneously with the guarantee, or seek legal advice on alternative discharge grounds (e.g. disproportionate commitment under Article L.332-1 Consumer Code).

Application pratique:

Applying the same case law, the father-guarantor cannot successfully claim the bank was negligent, since registering the mortgage on the Rennes house required the couple's own cooperation (signing before a notary) and was not something the bank could trigger unilaterally. Before relying on a 'promise of mortgage' as comfort when accepting to act as guarantor, insist that it be converted into an actual notarised and registered mortgage at the same time the loan is disbursed. If this has already happened and the promise was never formalised, the guarantor's only realistic defence lies elsewhere (e.g. proportionality of the guarantee), not in blaming the bank's inaction on the mortgage.

Application pratique:

Per this Cour de cassation decision, since perfecting the pledge over the SCI shares depended on acts only the developer (the 'promettant') could perform — such as updating the company's share register — the bank commits no fault in not forcing it through, and the guarantor's liability action will fail on this basis. Anyone accepting to guarantee a loan secured by a 'promise' of pledge or mortgage over a co-borrower's assets should obtain written confirmation of actual registration before or simultaneously with signing, not rely on the promise alone. If registration never occurred, consult a lawyer promptly to explore other defences (capacity, information duties, proportionality) rather than a bank-fault argument, which this case law forecloses.