Beneficium divisionis

In another very important respect, the lot of sureties had already been relieved in classical law by a rescript of the Emperor Hadrian.

"fF]ideiussores... perpetuo tencntur, ct quotquot erunt numero, singuli in solidum obligantur.

This sounds like the lex Furia rediviva: the debt was to be divided per capita between the various co-sureties. But there were important differences between that earlier piece of legislation and the epistula Hadriani. The latter granted only a beneficium divisionis of which each surety, when sued, could, but need not, avail himself. In law, fideiussores remained liable in full. Thus if one of them had paid the whole amount, only to find out that the "principal" debtor had fallen insolvent, the loss was entirely his. Neither was the creditor unjustifiedly enriched (the surety had not paid indebitum), nor was there, failing special legislation after the model of the lex Appuleia, a general right of recourse against the other fideiussores.. et sibi imputare debet, cum potuerit... desiderare ut pro parte in se detur actio":¹¹⁴ he has only himself to blame, since he could have availed himself of the beneficium. The fact that the obligation was not divided ipso iure as between the various co-sureties,^[699] but that this concession had to be applied for, before the magistrate, at the time when action was brought, had another important consequence: no longer was each co-surety liable for his proportionate share, regardless of whether one or more of the others had in the meantime become insolvent;^[700] for the calculation of the shares it mattered only how many co-sureties were solvent "litis contestatae tempore".^[701] If, for example, A, B and C had been fideiussores for a debt of 120, the creditor could claim 40 from each of them, if all were solvent at the time of litis contestatio and had availed themselves of the beneficium divisionis. If, however, C was insolvent at the time when A and B were sued, the liability of each of them increased to 60. Thus, in contrast to the rather inflexible regime of the lex Furia, the co-sureties now had to carry the risk of insolvency of one or more of their number,^[702] and this, undoubtedly, represents the more appropriate solution to the problem.

3.