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Lors de l’ouverture d’une procédure amiable – mandat ad hoc ou conciliation –, les règles de protection des cautions données par le chef d’entreprise ont un traitement particulier.

When associated with a validly concluded contract, the suretyship must comply with the written form as a condition of validity and the guarantee must be limited to the dimensions of the principal obligation and its ancillaries. In order to qualify the contract of suretyship, which has theoretical and practical implications, the study analyzed the personal and temporal limits of the guarantee, as well as the character of the contract, in principle unilateral and gratuitous, with the corresponding exceptions to these characteristics.The suretyship has been examined in relation to the obligations that it can guarantee, including future, natural obligations, under suspensive condition, or those arising from the annulment of the original contract for incapacity, with the doctrinal arguments put forward in support of the survival of the guarantee. The relationship of the accessory nature of the suretyship’s guarantee was emphasized by the way in which it is reflected in the extension of the time limit for performance of the principal obligation, the debtor and the surety’s forfeiture of the benefit of the time limit, as well as in the case of early performance of the principal obligation by the surety, when, in the face of the danger of insolvency, the surety is interested in realizing the recourse.Theoretical and practical aspects related to the purpose of the study required that the effects of the suretyship’s guarantee be dealt with in the tripartite dimension of the relationships between the surety and the creditor, between the surety and the debtor and between the co-sureties.Under the first aspect of the relationships, the accessory and subsidiary nature of the suretyship is manifest in the case of the exclusive pursuit of the surety or the concurrent pursuit of the debtor and the surety, in the form of exceptions arising from the principal and accessory contract of the guarantee and the activation of the benefit of discussion and division. The effects of the benefit of division have been integrated into the process of removing the legal presumption of joint and several liability and their conditions and the consequences of the insolvency of one or more joint surety. In relation to the two options of the surety of discussion and division, the effects of joint and several liability between the surety and the principal debtor and the effects of joint and several liability between the sureties were elucidated.The essence of the practical work in analyzing the relationship between the surety and the debtor is that the effects related to this relationship derive from the law or directly from the payment and not from the main contract. The guarantor’s recourse after payment is based on personal agency or business management, depending on whether the obligation of the guarantor has been assumed with or without the debtor’s consent, or by subrogation. Prior to payment, the surety’s anticipated recourse is a product of the law. These relations have dealt with the consequences arising from the creditor’s double payment following the creditor’s and debtor’s waiver of the duty to inform.The relations between joint sureties have raised the question of the recourse of the surety solvency vis-à-vis the other joint sureties, the consequences of the insolvency of one or more joint guarantors and the way in which their joint and several liability is reflected in the recourse of the guarantor solvency.The final part deals with the direct means of extinguishment of the suretyship by reference to their mechanisms and the indirect means arising from the extinguishment of the guaranteed obligation

Foreign direct investment and private capital flows are highly concentrated geographically, with almost half of them reaching five top destinations. These flows tend to evade many high-risk countries. Regulatory and contractual risks, particularly in infrastructure, have inhibited investments in many parts of the developing world. A core objective of the World Bank Group (WBG) has been to support the flow of private investment for development; guarantees and insurance have been among the instruments that the WBG has used to pursue this objective. This study examines three main questions: • Should the WBG be in the guarantee business? • Have guarantee instruments in the three WBG institutions been used to their potential as reflected in WBG expectations and perceived demand? • Is the WBG appropriately organized to deliver its range of guarantee products in an effective and efficient manner?

Jurisdiction, Venue, and Forum In Key Construction, Inc. v. Western Surety Co.,6 a subcontractor default on a project in Washington resulted in a project-wide shut down.7 The prime contractor brought suit in Kansas state court under the subcontract's forum-selection clause, which provided that to the extent the contractor did not elect arbitration, the \"Eighteenth Judicial District, District Court Sedgwick County, Kansas is the court of exclusive jurisdiction and venue\" to resolve disputes between the prime contractor and subcontractor.8 The surety removed to federal court and sought transfer to Washington.9 The prime contractor moved to remand back to Kansas state court.10 The court denied both motions.11 As to the motion to transfer, the court explained that the balance of factors did not strongly favor transfer as required under precedent.12 The court noted that the prime contractor's choice of forum and court congestion weighed against transfer, whereas conflict of laws and allowing a local court to decide localized issues favored transfer.13 In denying the motion to remand, the court explained that the subcontract only applied to disputes with the subcontractor, and that the performance bond did not specify that the surety assumed all obligations undertaken in the subcontract.14 In Jackson Contractor Group, Inc. v. Travelers Casualty & Surety Co. of America,15 a subcontractor ceased working on an Idaho project.16 The prime contractor sued the subcontractor's performance bond surety in federal court in Washington.17 The surety moved to dismiss under the performance bond's forum-selection clause, which designated Idaho.18 The surety also moved to transfer to federal court in Idaho on forum non conveniens grounds.19 The prime contractor argued that the forum-selection clause was void ab initio under a Washington statute that provides that insurance contracts may not \"depri[ve] the courts of this state of the jurisdiction of action against the insurer\" and that venue transfer was inappropriate as private and public interest factors weighed in favor of staying in Washington.20 The court denied the surety's motion, explaining that the forum-selection clause was void ab initio because the performance bond was subject to Washington law as it was signed in Washington, work was partially performed in Washington, and the prime contractor and subcontractor were located in Washington.21 The court further explained that transfer was inappropriate because relevant witnesses were located in Washington.22 3. Conditions Precedent In Sterling & Wilson Solar Solutions, Inc. v. Fidelity & Deposit Co. of Maryland,23 a prime contractor default-terminated a subcontract and sent the subcontractor's performance bond sureties written notice in which it advised the sureties that the subcontractor had \"defaulted\" on the subcontract.24 The notice further advised the sureties that the notice was being provided pursuant to section 3 of the AIA A312-2010 performance bond.25 The sureties lost the notice and did not respond, and the prime contractor obtained a completion contractor and filed suit against the sureties.26 The sureties moved for summary judgment, arguing that the notice failed to satisfy the express conditions precedent of section 3, which required pre-termination notice and a post-termination agreement to pay the balance of the subcontract price.27 In denying the sureties' motion, the court held that violation of a notice requirement exonerates a surety only to the extent of resulting prejudice even when notice is an express condition precedent to liability.28 4. \"34 The court found that the contracts could not be district contracts absent the district's inclusion as a party.35 Therefore, the court held that the liquidated damages clauses were unenforceable penalties under Texas law.36 In Apex Development Co. v. Rhode Island Department of Transportation,37 after substantial completion of an interstate highway project a property owner sued the DOT, claiming trespass and damage to property during construction.38 The DOT sought to enforce the contract's indemnification claim against the prime contractor's sureties.39 The sureties argued that the bond only applied to direct construction costs and that their obligations were conditioned on the prime contractor's default and notice to the sureties.40 The supreme court affirmed summary judgment in favor of the sureties, finding the performance bond was null and void without a declaration of default and notice.41 The court further held that it would be unreasonable to extend liability to the sureties where the failure to provide notice prevented them from intervening to minimize their liability for damages.42 In E&I Global Energy Services, Inc. v. United States,43 after prime contractor's termination on a federal project the performance bond sureties retained a completion contractor under a contract in which the sureties were responsible for paying pre-default debts owed to subcontractors and suppliers.44 The completion contractor had difficulty retaining subcontractors and suppliers and paid some of prime contractor's outstanding debts to retain their performance.45 The completion contract was terminated for default for untimely performance.46 The completion contractor sued the government seeking damages and a conversion of the termination to a termination for convenience. On appeal, the Federal Circuit concluded that the factual allegations were sufficient to support the completion contractor's theory of excusable delay.47 The court explained that the sureties' failure to pay subcontractors and suppliers could constitute an adequate excuse for delay if it substantially impaired the completion contractor's performance.48 The court further explained that the sureties' alleged failures and the government's failure to enforce the sureties' payment obligations could also constitute an adequate excuse for delay under federal law.49 In U.S. Specialty Insurance Co. v. Trawick Contractors, Inc.,50 following a subcontractor default, its surety filed a declaratory judgment action against the prime contractor who counterclaimed for completion costs.51 After discovery, the surety issued payment to the prime contractor that excluded legal and consulting expenses.52 The surety then moved for summary judgment, arguing that it was not obligated for such costs because the performance bond did not reference legal or consulting fees and did not otherwise incorporate the subcontract by reference.53 The court denied the surety's motion, explaining that the subcontract and bond must be \"read together\" because the bond described the subcontract and the work required thereunder, and the subcontract required the bond at issue.54 The court then found that the subcontract and bond, as read together, required the surety to reimburse the prime contractor for legal and consulting expenses up to the penal sum of the bond.55 5.

The contractor defaulted the manufacturer, corrected the work, and filed a claim against the performance bond without terminating the manufacturer.10 The surety denied the claim because the contractor failed to terminate, then filed suit seeking declaratory judgment, and moved for summary judgment.11 In response, the contractor argued that the bond's condition precedent did not apply to the defective work or obligation to furnish a manufacturer warranty, and that the contractor was otherwise prevented from terminating the manufacturer because the modular structure had been delivered and installed.12 The First Circuit rejected the contractor's arguments, emphasizing that the warranty claim arose from the failure to procure a warranty before completion of the subcontract (and not a demand for remediation under a warranty).13 The court explained that the performance bond's terms did not exclude this warranty obligation from the conditions precedent and that the surety's performance options were \"no less suitable for the warranty obligation than for the physical work of fixing the [underlying work]. The contractor immediately notified the surety of the termination, but claimed that it was forced to continue work on the project while the surety performed its investigation.20 The contractor sued the principal and surety for breach of the performance bond, contending that the surety had not paid the contractor's claim.21 The court granted the surety's motion for summary judgment and denied the contractor's motion for summary judgment on the breach of the performance bond count.22 In so granting, the court reasoned that it was undisputed that the contractor began self-performing upon notifying the surety of its bond claim, which foreclosed upon the surety's bargained-for right to have a reasonable period of time within which to select a remedial option.23 4. Proper Claimants In Hanis County Water Control it Improvement District No. 89 v. Philadelphia Indemnity Insurance CoŅ the Fifth Circuit considered whether a prime contractor could assert claims against a subcontractor's performance bond when the bonded subcontract had been changed without notice to the subcontractor's surety.25 The surety asserted that the undisclosed changes represented a new independent contract that happened to embrace the same subject matter as the bonded subcontract.26 The court rejected the surety's argument, holding that the objective intent of the undisclosed changes was to amend and not replace the underlying subcontract.27 The court explained that changed terms were described as a revised version of the bonded subcontract and contained the same section number, the same title, and the same subject matter as the bonded subcontract.28 5. The district court granted the surety's motion for summary judgment under the statute of limitations.30 The Eighth Circuit affirmed, holding that the public corporation could not invoke the doctrine of nullum tempus [\"time does not run against the king\"] because its claims arose from private-law theories that constituted proprietary rights, not the rights of the public.31 The court emphasized that the public corporation did not sue to enforce statutes or regulations, and a victory would not allow it to exercise any sovereign right.32 In Transit Wireless, LLC v. Fiber-Span, Inc.,11 although the prime contractor raised technical concerns about nodes installed on a project, which were partially addressed through retrofitting, the contractor used the nodes for nearly three years.34 The contractor later demanded that the subcontractor replace the retrofitted nodes and, upon refusal, sued the subcontractor and its performance bond surety.35 The subcontractor petitioned for bankruptcy.36 The bankruptcy court dismissed the contractor's claim against the surety, reasoning that the claim was untimely under the contractual two-year statute-of-limitations period because suit was filed more than two years after the contractor accepted the nodes though use.37 The district court reversed the bankruptcy court's decision, emphasizing that use of nonconforming goods is not acceptance in every case and that the contractor's use was reasonable under the circumstances.38 On appeal, the Third Circuit vacated the district court's opinion in part and concluded that the contractor's claim was untimely.3Q The contractual statute-of-limitations was dependent on delivery and not acceptance.40 The term \"delivery\" had been interpreted under the UCC to constitute tender of goods, regardless of their conformity.41 The court adopted this definition, noting that it was consistent with a commonsense understanding and was not dependent on some uncertain moment when the prime contractor might actually choose to accept the good.42 In Shallow Water Equipment, LLC v. Pontchartrain Partners, l.LCT the subcontractor argued that the discovery rule deferring the accrual of a cause of action until a plaintiff knew or should have known of the facts giving rise to a cause of action applied to Miller Act claims, rendering the subcontractor's claims timely.44 The court determined that the subcontractor's claim against the performance bond filed three months after the Miller Act limitations period had expired was untimely.45 Even if the discovery rule applied, the subcontractor's claim was still untimely because the subcontractor failed to exercise reasonable diligence in inspecting the vessel post-completion, where it would have discovered the damage to the vessel a year before the subcontractor filed its claim for said damage.46 In Southway Builders, Inc. v. United States Surety Co.,47 a prime contractor defaulted a subcontractor for untimely performance and asserted a claim against the subcontractor's performance bond.48 The contractor subsequently entered into a memorandum of understanding with the subcontractor's sureties to ensure that work continued while the sureties investigated the claim.49 The memorandum of understanding amended the bond's choice-of-law provision from Maryland to Virginia law.50 When the contractor failed to file a lawsuit within the bond's contractual oneyear limitations period, the sureties denied the prime contractor's claim, filed suit seeking declaratory judgment, and moved for summary judgment under the limitations period.51 The contractor argued that the contractual limitations period was void ab initio under Maryland law when the performance bond was signed, and, therefore, the memorandum of understanding's choice-of-law provision could not resurrect the void limitations period under more lenient Virginia law.52 The trial court granted the sureties' motion, holding that the limitations period was subject to and enforceable under Virginia law.55 On appeal, the Supreme Court of Virginia affirmed on different grounds, explaining that the bond's alternative saving provision provided for the minimum period of limitations under Virginia law.54 Surety contracts are construed as insurance contracts under Virginia law, and, therefore, the bond was subject to the one-year minimum limitations period required for insurance contracts and not the default five-year limitation period for causes arising in contract.55 6.