SURETYSHIP

A feature of Roman law which is at first sight surprising is the prominence of personal security or suretyship, and the variety of forms it could take.

The two earliest forms of suretyship (called sponsio and fide- promissio from the formal words used) were by stipulation, and were in most respects subject to the same rules, sponsio being however confined, as it was when used to create a principal debt, to Roman citizens. But they were both subject to several limitations and defects. They could only be used when the principal debt itself was created by stipulation; the obligation died, as did probably all primitive obligations, with the person who undertook it; it was extinguished in any case two years after it was created; and if there were several sureties for the same debt, each was liable only for his proportionate share of the principal debt, even if one or more of his co-sureties were insolvent. These last two restrictions, and some others, were the result of legislation which was evidently intended to relieve the lot of sureties. But it defeated its own purpose by making these two forms too unattractive to creditors. In the late Republic therefore there emerged a third form, fideiussio, which was also a stipulation, but was subject to none of the defects and limita-

^{1face="Times New Roman">}                       He made no express pronouncement, and the texts are confused.

²                        Above, p.

tions mentioned above: it could guarantee any debt, however created", it bound the heirs of the surety and was subject to no limitation period; and if there were several sureties the creditor could claim the full debt from any of them. This last feature was indeed modified by Hadrian to the extent that a surety could, if he wished, claim the privilege (beneficium divisionis} of paying only his proportionate share of the debt; but in the calculation of the share those sureties who were insolvent at the time the action was brought were ignored. In other words, the risk of a surety’s insolvency was on the other sureties, whereas in sponsio and fidepromissio it fell always on the creditor.

Fideiussio was thus far more favourable to the creditor than the other two, and it alone of the three survived in the law of Justinian. We have already encountered two other, informal, methods of effecting suretyship—by mandate and by constitu­tum. Since both came into existence simply by agreement, and laymen habitually do not express their agreement in legal terms, the substantial difference between the two was that in mandate the agreement must precede the creation of the principal debt and in constitutum it must follow it.

These contracts of suretyship created, of course, relationships only between creditor and surety. If there were to be any claim by the surety who paid the debt against either the debtor or his co-sureties, it must rest on some other ground. As between surety and debtor, if the surety had incurred his obligation to the creditor at the debtor’s request the ground would be mandate, and if he had done so of his own accord it might be negotiorum gestio.¹ It is significant of the early origin of sponsio that the remedy of the sponsor against the principal debtor was provided by statute. As between co-sureties the relationship would be one of societas if they had acted in concert, but if they had not the law provided no remedy. After Hadrian’s introduction of the beneficium divisionis, however, this cannot have been a matter of much importance.

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