Promissio indemnitatis and fideiussio fideiussoris
We have so far largely been dealing with the standard form of fideiussio. Suretyship, however, gave the Roman lawyers ample opportunity to display their ingenuity in devising special types of transactions to meet special circumstances or to get around some of the more cumbersome edges of fideiussio.
Promissio indemnitatis has been mentioned already.15 r This way of drafting the suretyship stipulation seems to have become fairly popular in classical law, because it had advantages for both the creditor and the surety: for the creditor it provided a convenient way of avoiding the consequences of litis consumptio; for the surety it was favourable in that it made his liability a subsidiary one. The fideiussor fideiussoris (achterborg, Nachburge, rear-surety) is another example.152 He undertook a suretyship for a surety, thus guaranteeing not the obligation of the principal debtor but that of the first surety. By using this form of rear-suretyship, the creditor had the benefit of the additional security afforded by a plurality of sureties, while on the other hand evading the inconvenience of having to sue all of them individually for their proportionate share (in case they chose to avail themselves of the beneficium divisionis).Cf. Levy, Sponsio, pp. 164 sqq.; Frezza, Garanzie, vol. I, pp. 186 sqq.; but see Provera. Studi Sanfilippo, vol. IV, pp. 636 sqq.
Cf. e.g. Windschcid/Kipp, § 481, 3.
15,1 As far as the right of recourse between joint debtors is concerned, cf. Wesener, (1965) 11 Labeo 35U sqq.; Kaser, RPr II, pp. 456 sq. For an evaluation of the historical development of the right of recourse in Roman law generally, see Wesener, pp. 360 sq.
H Cf. supra, note 86.
132 Cf. e.g. Ulp. D. 46, 1, 8, 12 and Caney/Forsyth, op. cit.. note 49, p. 48.
2.
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