Proposition 51K2730

Projet de loi relatif au cautionnement à titre gratuit.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Nov. 6, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

civil law guarantee

Voting ¶

Voted to adopt

CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

Contact form ¶

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Discussion ¶

Feb. 8, 2007 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Ministers, Colleagues, the draft law amending the Civil Code with a view to the protection of the borrower was interpreted as follows by Mrs. Vice-Prime Minister Van den Bossche.

The draft law aims to provide better protection and awareness for those who make a free deposit. The aim is to avoid excessive debt burden on consumers. After all, many people do not realize the scope of their commitment. If, for example, the situation of the person for whom someone secured changes, for example, due to unemployment, illness or death, that makes the guarantor the main debtor.

The draft law applies to a natural person who makes a deposit. The status of the principal debtor does not matter. The creditor must act in the context of a commercial or professional activity. The deposit must also be made free of charge.

I crossed the main lines.

The deposit agreement must be handwritten and drawn up separately from the main agreement. The deposit should be limited to the commitment existing at the time the contract is concluded and should be limited in time. No agreement can be concluded that is disproportionate to the repayment possibilities of the depositor. The depositor should be regularly informed by the creditor about the evolution of the debt and the possible default of the debtor. The liability of the heirs of the guarantor shall be limited to the inheritance which belongs to each of them.

Mrs Roppe acknowledged at the hearing her bill, which she had already submitted on the subject in 2005. It is supported on the same concern, in particular giving more protection to the layman, being the guarantor outside profession or business. It also points out the differences, but also welcomes the fact that the Minister’s draft largely seeks the same protection. She announces that she wants to make improvements through several amendments.

Mrs Simonne Creyf of CD&V supports the bill and is pleased that, taking into account the opinions of the Consumer Council, it has become less stringent than the original draft. Nevertheless, it warns of widespread formalism, with the potential consequence that the use of the guarantee will decrease, although it remains a good way for start-up entrepreneurs to have sufficient financial resources.

Furthermore, Ms. Creyf considers that the phrase that the amount should be proportionate to the refundability of the deposit is too vague and subject to too much discussion.

The Minister clarifies that the creditor is obliged to inform himself of the solvency of the collateral. The deposit will only be declared void in the event of a clear disproportion.

Georges Lenssen of the VLD group also supports the bill. He asks whether it is also applicable if there is a professional relationship between the debtor and the guarantor.

The Minister emphasizes that this is only a free deposit, in which the guarantor in exchange, directly or indirectly, cannot enjoy any economic advantage.

In the end, one amendment by Ms. Roppe is unanimously adopted. The amendment aims to give the guarantor who claims the recovery the possibility to also identify the debtor’s property that is outside the jurisdiction of the court of appeal and of the place where the payment must be made, in so far as the goods are located within Belgium.

Ms. Roppe clarifies that the Ministry’s draft does not target the industry. Guarantees which have a direct or indirect economic advantage from the guarantee shall not fall within the scope of the application.

The Minister supports the amendment. The draft law, as amended, is then adopted unanimously. Consequently, the annexed bill of Mrs. Roppe is also void. Finally, the committee agrees with the legislative improvements proposed by the committee secretariat.