The contract of suretyship

Where someone incurs a contractual obligation towards another, he will often be asked by his new creditor to promise a penalty in case of non-fulfilment. Stipulationes poenae can therefore be seen as one way of ensuring that promises are honoured.

However, they give the creditor only another actio in personam against the debtor. Thus they do not protect him against the risk that the debtor may, once the debt has fallen due, have become insolvent or have disappeared. The creditor will therefore normally try to minimize the risk of losing out in one of two ways: he will either ask to be allocated a specific item belonging to the debtor (or to a third party) from which he will, in case of default or non-performance, be able to obtain satisfaction; or he may ask some other party (or parties) to guarantee fulfilment of the principal obligation. In other words, he will try to secure his position either by way of a real right (ownership, right of pledge, mortgage) or by actions in personam against one or more additional debtors (personal security). Traditionally, the most important type of personal security is the contract of suretyship, where, in the words of the BGB, the surety binds himself to the creditor of a third party to be responsible for the fulfilment of the obligation ofthat third party.¹ Suretyship is well known in all modern (and ancient) legal systems.² Roman law displayed a striking predilection for this type of security transaction (adpromissio). Like conventional penalties, adpromissiones had to be cast in the form of a stipulation. Three different types were known in classical Roman law: sponsio, fidepromissio and fideiussio. Their refined and elaborate structure made them a model for all times; thus, the rules governing suretyship today are still essentially Roman.

¹ § 765 I BGB.

Cf. especially the contributions published under the title "Les suretes personnelles" as vols. 28 (1974'). 29 (1971) and 30 (1969) of the Recueils de la societe Jean Boain pour 1'histoire comparative des institutions. For more than 1 800 pages, the law of suretyship is discussed in a wide variety of historical and contemporary legal systems. The contributions range from Sumerian-Akkadian to (for example) Cambodian Saw. Neither Hungarian law from the 13th to the 18th century nor medieval Lotharingian law is neglected (although Roman-Dutch and Scottish law are). Very useful, too, for the modern comparative history of suretyship is William Burge, Commentaries on the Law of Suretyship (1849); cf. further Ralph Slovenko, "Suretyship" (1964-65) 39 Tulane LR 427 sqq.; Philip K. Jones, "Roman Law Bases of Suretyship in Some Modern Civil Codes", (1977-78) 52 Tulane LR 129 sqq.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The contract of suretyship

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