German law and the English common law
In modern German law, too, suretyship is characterized by its accessoriness.[755] According to § 771 BGB, the surety may refuse to satisfy the creditor as long as the latter has not attempted compulsory execution against the principal debtor without success: a statutory version of the beneficium excussionis.
Hadrian's beneficium divisionis, however,'has not been adopted: co-sureties are liable as joint debtors for the whole debt {unless, of course, something else was agreed upon by the parties). The beneficium cedendarum actionum has been developed into a cessio legis: where the surety satisfies the creditor, the latter's claim against the principal debtor is (automatically) transferred to him.[756] As a consequence of this, all ancillary rights pass to the assignee, too.[757] Hence, the surety who has paid also acquires the claims of the creditor against the other (co-)sureties, but only to the extent of their pro rata share.[758] Even the English law of suretyship "has been much influenced by Roman law, partly directly, partly through medieval mercantile law which had been in contact with Roman law, partly through the system of 'Equity' administered by the English chancellors, which was itself influenced by canon law and late Roman law".[759] The rules relating to fideiussio have shaped the accessory nature of the surety's liability.[760] The beneficium cedendarum actionum lives on in the form of a duty of contribution between co-sureties and of the doctrine of subrogation.[761] Sureties do not, however, have the right to compel the creditor to proceed against their co-sureties (beneficium divisionis). Nor, in fact, is the creditor required to sue the principal debtor first; the beneficium excussionis, recognized in medieval English law,191 has not managed to establish itself in the modern common law.192It is not accidental that neither the beneficium divisionis nor the beneficium excussionis became part of the English law. Even in those legal systems where they have been received, their operation is usually excluded by the parties.193 Thus, if one looks, not at the common law or statute book, but into how suretyship is actually practised today, one will generally find the sureties to be in the position of joint and several debtors: liable for the whole debt and as a principal debtor. In so far as certain Germanic forms of suretyship still live on in this practice, the history of suretyship could indeed be written as a struggle of indigenous custom against the received rules of Roman law.194
VIII.
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