xiii. suretyship Flashcards
suretyship (=guarantee)
= another person along with the obligor commits themselves to be personally liable with all his assets for the debts incurred by the obligor
→ ACTIO EX STIPULATU or analogous action against the surety
→ natural obligation can also be secured (eg. slave takes out a loan)
SC VELLEIANUM
= forbids women to intercede (‘step in’) for others, and an intercession made against this prohibition is valid but the woman may ward off claim with EXPCETIO SC VELLEIANI.
FIDEIUSSIO
= ‘promise of suretyship’
- SPONSIO + FIDEIPROMISSIO
- verbal contract, specific type of STIPULATIO
- guarantor is alternative debtor: creditor is free to choose from whom to demand debt
- accessoriness: guarantor’s obligation depends on the existence of obligation between primary obligor and creditor
BENEFICIUM EXCUSSIONIS
= from Justinian’s time, guarantor can demand with this action that the creditor first go to the primary obligor, and only when he can’t satisfy the debt is the guarantor obliged to make payment
guarantor’s objections
- may use all objections that primary obligor has against creditor, even against debtor’s will
- he may not use objections of personal nature (eg. special relationship and thus only sentenced for a reduced amount = BENEFICIUM COMPETENTIAE)
- may use any that related to the debt
guarantor’s right of recourse
- mandate: with ACTIO MANDATI CONTRARIA
- NEGOTIORUM GESTIO: with ACTIO NEGOTIORUM GESTORUM CONTRARIA
→ generally considered useful, but not if there was EXCEPTIO of debtor
→ most jurists deny claim if it was against express wishes of debtor, but some grant legal this action or at least an ACTIO UITLIS - assignment of claims
recourse of guarantor by assignment of claims
- transferring the claim of creditor to guarantor
- eg. through concluding a MANDATUM IN REM SUAM
- under Justinian: guarantor is entitled to demand this (= BENEFICIUM CEDENDARUM ACTIONUM)
distribution of insolvency among co-guarantors
- LEX APULEIA
- LEX FURIA DE SPONSU
- EPISTULA HADRIANI
LEX APULEIA
= co-guarantors are joint debtors: creditor may demand full sum from any of them, but the co-guarantor who payed then has recourse against others
LEX FURIA DE SPNSU
= creditor can only demand a portion from each of the co-guarantors, taking individual action against each (severe liability: liability only for proptional portion of the whole)
EPISTULA HADRIANI
= all SOLVENT creditors are proportionally liable (they share the risk ofma co-guarantor or debtor becoming insolvent).
BENEFICIUM DIVISIONIS
The EPISTULA HADRIANI grants the right to demand creditor sue the other co-guarantors, but they have to prove that other guarantors are solvent.
