Promissory with the endorsement of only one spouse does not affect the assets...

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The endorsement in a promissory note without a conjugal grant is valid, but ineffective in relation to the spouse who did not consent to it. The decision was made by the 3rd Panel of the Superior Court of Justice, upholding the ruling that deemed valid the endorsement provided by a pair of businessmen without the signature of the woman and her partner.


According to the collegiate, under the 2002 Civil Code, the endorsement provided on promissory notes without the marital grant is valid, since in these cases the special legislation that governs promissory notes applies, which does not require the spouse's authorization.

The rapporteur of the appeal, Minister B2B Lead Nancy Andrighi, highlighted that, although the absence of a grant does not have the effect of invalidating the guarantee, the spouse and partner cannot support the guarantee given without their consent with their assets, and the shareholding regarding the couple's common assets, as decided in the judgment under appeal.

In the case analyzed, the woman and the partner of the guarantors appealed seeking the application of the general rule set out in article 1,647 of the Civil Code, which deals with marital grant.

The rapporteur minister stated that the marital grant rule should not be applied to all credit instruments, especially typical or named ones, as is the case with promissory notes, since the special law applicable to the case (Geneva Uniform Law) does not imposes this same condition.

“Conditioning the validity of the guarantee given in a promissory note to the granting of the guarantor's spouse, especially in the world of business negotiations, is to weaken it as a personal guarantee and, consequently, compromise the circularity of the title in which it is given, reducing its negotiability ; is to add a factor of insecurity to the credit title, insofar as, in the chain of endorsements that drives its circulation, the holder, not infrequently, is unaware of the personal conditions of the guarantors”, said the minister.



Nancy Andrighi recalled that in the Civil Code of 1916, a simple written statement was enough to provide a guarantee, but the new code began to require the married guarantor to provide a marital grant, except in the regime of absolute separation of assets, under penalty of the act being considered as voidable.