Fidepromissio and the transition to fideiussio

Fidepromissio did not offer the creditor a more viable alternative, because it was subject to the same defects and limitations as sponsio.^[646] All the rules mentioned so far applied also to fidepromissio.

By the end of the Republic, therefore, while sureties were well protected, creditors started to look for better security. Thus a third type of suretyship stipulation emerged which was subject to none of the above-mentioned limitations.^{[647] [648] [649] [650] It soon began to supersede sponsio and fidepromissio in practice and has become the prototype of the modern contract of suretyship. This development provides a good example of how well-intentioned legislation, designed to achieve better protection of the debtor, can in the end defeat this very purpose. The new type of suretyship was called fideiussio and the question and answer required for its conclusion were as follows: "Quod Maevius mihi debet, id fide tua esse iubes?" "Fideiubeo."43 Fideiussio was not subject to the provisions of the lex Appuleia, the lex Furia or the lex Cicereia.44 Otherwise than in the case of sponsio or fidepromissio, the obligation was transmissible on death, i.e. the creditor could sue the heirs of a deceased fidejussor.45 Furthermore, fideiussio was not restricted to securing stipulations; it could be used to guarantee any debt, however created.[651] It has been suggested that there was a further, more fundamental and structural difference between the new and the two older forms of suretyship and that this is what Gaius really had in mind when he emphasized: "Sponsoris vero et fidepromissoris similis condicio est, fideiussoris valde dissimilis":[652] fideiussio, it is said, was "accessory", while sponsio and fidepromissio were not.[653]}

III.