SURETYSHIP

Question 1

definition of suretyship = guarantee

Answer 1

another person along with the debtor commits himself to be personally responsible with all his assets for a debt incurred by the obligor

Question 2

contracted between:

Answer 2

creditor and surety but three-person relationship, consisting of creditor, principal debtor and surety

Question 3

which action can be brought by the creditor?

Answer 3

ACTIO EX STIPULATIU

Question 4

FIDEIUSSIO

Answer 4

most important type of suretyship
made by verbal contract - specific type of STIPULATIO
the guarantor and debtor rank the same in relation with third parties; the guarantor becomes the creditor’s alternative debtor

Question 5

principle of accessoriness

Answer 5

when making FIDEIUSSIO, the guarantor obliges himself to pay the creditor the same amount as the debtor is supposed to pay
creation, continuent existence and amount of the obligation depends on the primary obligation

Question 6

guarantor’s objections torwards the creditor

Answer 6

the guarantor may counter the creditor’s claim (even against his will) but only related to the facts of the case (not to personal nature)

Question 7

can natural obligations be validly secured?

Answer 7

yes, the fact that the creditor’s claim can’t be enforced by the guarantor doesn’t mean that he can’t be sued for payment

Question 8

guarantor’s right of recourse

Answer 8

the guarantor repays another person’s debt = it is appropriate to let him demand reimbursement

Question 9

recourse based on MANDATUM

Answer 9

1. created if the guarantor (mandatarius) stands surety upon the request of the debtor
2. guarantor has ACTIO MANDATI CONTRARIA
3. they have further contractual obligations (e.g. inform if the debt was paid to prevent the creditor from being paid twice)

Question 10

recourse based on NEGOTIORUM GESTIO

Answer 10

1. if there’s no contract between the guarantor and primary obligor, the debt is attributable to the debtor - intervention in another person’s affairs
2. guarantor has ACTIO NEGOTIORUM CONTRARIA
3. useful because the guarantor’s payment frees the debtor from obligations torwards the creditor
4. not useful if the debt which is repaid by the guarantor didn’t exist or the debtor would’ve had an exceptio -> then CONDICTIO INDEBITI

Question 11

recourse by means of assignment of claims

Answer 11

once guarantor has paid debt, creditor and guarantor can conclude a MANDATUM IN REM SUAM on the basis of which the guarantor benefits from rights of pledge or sureties that still exist to secure the claim

Question 12

co-suretyship

Answer 12

when several persons stand surety for the same debt of a primary obligor