Limited accessoriness of fideiussio

(a). nee plus in accessione fest] "

Any discussion of the accessory nature of the Roman suretyship stipulations immediately involves the danger of superimposing modern concepts and thinking patterns upon historical legal system.

Suretyship, in modern law, is an "accessory" contract,^[654] accessoriness indicating, in the present context, dependence, to a greater or lesser extent, of the surety's obligation upon that of the principal debtor. Both the term and the idea do, indeed, go back to Roman law, but it would, of course, be ahistorical to expect the Roman sources to conform to, for instance, the rigid conceptualization of the BGB: "The extent of the principal obligation at any time determines the obligation of the surety."⁵⁰ Whilst, in fact, many of their decisions would fit in well with this definition, the Roman lawyers took a much more flexible line and never allowed themselves to be hemmed in by rigid dogmatic categories such as "accessoriness".⁵¹ Nor did they actually use that term in the modern technical sense. When Gaius says, "[n]am [sponsores et fidepromissores] quidem nullis obligationibus accedere possunt nisi verborum"⁵² or.. et horum [referring to sponsores, fidepromissores and fideiussores] obligatio accessio est principalis obligations",⁵³ he merely describes the obligation of the surety as one which is added to that of the principal debtor. The adjective "accessorius", incidentally, was created by the glossators ("in accessione... id est in accessoria obligatione"). How far, then, was this "added" obligation of the fidejussor dependent upon the obligation it was designed to secure? The answer of the Roman lawyers was, in a nutshell: in so far as the structure, function and purpose of the surety's promise required.

Thus, for example, the obligation of the fidejussor could not exceed the principal obligation: "... nee plus in accessione esse potest quam in principali re." ⁴ If, in the framing of the fideiussio, reference had to be made to the main obligation, it is hardly imaginable how the surety could be made to promise "eadem quindecim quae Maevius debet", where Maevius in fact only owed decern. On the other hand, the surety could be liable for less than the main debtor, for if the latter owed ten, he would in any event and by implication also owe the five which the surety might have made himself liable for: minus in maiore inest.⁵⁵ Generally speaking, one can say that the surety was not to be liable more strictly than the main debtor. Suretyship is a way of ensuring that the creditor gets what the debtor owes him; where the debtor does not owe anything, the third party cannot really be said to stand surety. This type of reasoning can also be applied, for instance, to conditional promises:⁵⁶ where the main obligation was conditional, the fideiussor could not be made to promise unconditionally. Yet it was perfectly possible to secure a promise that was not itself subject to a condition, by means of a conditional fideiussio.⁵⁷

(b) The availability of the debtor's exceptions

Similar considerations seem to have been relevant in determining whether the fidejussor could avail himself of the exceptiones which the debtor was entitled to raise. This problem crops up in a variety of texts. Celsus D. 12, 6, 47 provides an example:

"Indebitam pecuniam per errorem promisisti: cam qui pro te fideiusserat solvit.... sijn autem] fidejussor suo nomme solvent quod non debebat, ipsum a stipulatore repetere posse,.... "⁵⁾*

Maevius (the main debtor) promised, by mistake, to pay what he did not in actual fact owe. Seius stood surety for this promise. In order to discharge his suretyship obligation, Seius then paid the money to Titius (the creditor).

As n consequence of the mistake, Titius is unjustifiedly enriched. The question is, however, whether Seius or Maevius can institute the condictio indebiti.⁵⁴ On the one hand, one may argue that Seius has paid a debitum; thus, he can sue Maevius only for reimbursement, and it is up to the latter to claim the unjustified enrichment back from Titius. Celsus opines otherwise: Maevius could have raised an exceptio doli should Titius have tried to sue him. The same exceptio was available to Seius, who, in honouring his obligation arising from the fldciussio, has paid something he did not have to pay—an indebitum which he will now be able to claim back himself. A similar view is expressed in many other sources.⁶⁰ But it would be rash to accept the generalizing statement by Marcianus (D. 44, 1, 19): "Omnes exceptiones, quae reo competunt, fideiussori quoque etiam invito reo competunt" at face value. Ifa debtor became insolvent owing to misfortune, he was able to avoid the harshness of personal execution by way of cessio bonorum, i.e. by ceding his property to the creditors.⁶¹ Once he had done that, he could bar further claims with the exceptio nisi bonis cessent. Defences of this kind, which were based on certain snags pertaining to the person of the main debtor, rather than the principal obligation, could not be raised by the fideiussor:.. ideo quia, qui alios pro debitore obligat, hoc maxime prospicit, ut, cum facultatibus lapsus fuerit debitor, possit ab his quos pro eo obligavit suum consequi."⁶² But if the fideiussio was designed to protect the creditor against exactly this type of eventuality, it was certainly not intended to provide him with a sum of money which the principal debtor had promised only by mistake and which he was therefore ^[655] ^{^[656] entitled neither to receive nor to retain. This is the underlying policy reason for Celsus' decision discussed above;^[657] to sue the surety while the main debtor can raise the exceptio doli is in itself a breach of good faith which may, in turn, be met with an exceptio doli.
(c) invalidity of the principal obligation
If the principal obligation was invalid (perhaps because it was illegal or immoral), a contract of suretyship could not be validly created either, for there was nothing to secure. The position was different in the case of a naturalis obligatio: where a ward or woman had incurred an obligation sine auctoritas tutoris, a fideiussio undertaken to secure his or her (natural) obligation was valid and enforceable.^[658] Again, the "snag" about the principal obligation related to the person of the main debtor, and it did not run counter to the function of suretyship to afford coverage for the creditor in these cases: the surety is supposed to secure the creditor against any inability on the part of the debtor to pay his debt, whatever the reason. The same principle applied where somebody had stood surety, for instance, for the obligation of a slave.^[659] By the same token, the surety's obligation normally^[660] expired when the principal obligation came to an end. Thus, where the debtor had paid what he owed, or where he had been released by acceptilatio, where his obligation was discharged by novatio or where, for example, the creditor became his universal successor (confusio), the fideiussor automatically became free too.^[661] Problems could arise where fulfilment of the principal obligation had become impossible through no fault of the principal debtor: both principal debtor and fideiussor were free. This was the situation even if the fideiussor had been responsible for the fact that the debtor had become unable to render performance. If, for instance, Seius (the surety) killed the slave that Maevius (the principal debtor) had promised to deliver to Titius, Maevius' obligation was discharged and, as a consequence, Seius' obligation fell away as well. This result was, of course, intolerable and thus we find the praetor granting either an actio utilis or an actio de dolo against the fideiussor.^[662]
All in all, therefore, one can conclude that the obligation of the fidejussor wi dependent upon that of the main debtor, but only in a limited way/'⁹ Thus, to characterize fideiussio as "accessory" is safe only as long as it is kept in mind that one does not thereby describe the precise nature and scope of all legal effects involved.⁷"
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Limited accessoriness of fideiussio

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