ARTICLE I: ON SURETYSHIP

(Bond, Bail-bond, Security, Recognizance.)

1032. • Suretyship is a contract by which someone takes upon himself another's obligation, if the principal debtor does not pay. -

1033. Rules of Suretyship. - 1° A surety is not obliged more strictly than the debtor; for the accessory follows the nature of the principal: wherefore if the obligation of the latter, on account of a vice in the title of the creditor, is invalid, that of the former will also be invalid.

2° He is held toward the creditor for the whole and only the obligation which he undertook, but with the benefit of discussion or order, i.e. regularly he is not obliged before the creditor has juridically sought the debt from the principal debtor, and it is clear that this man is unable to pay. - I said 1: for the... only, etc. Therefore the force of suretyship ceases if anything is renewed in the obligation without the consent of the surety. E.g. you became surety for a debt to be paid after a month. If between the creditor and the principal debtor, without your consent, it has been agreed that the debt be paid after 36 days, or, a part of the debt having been accepted, he has promised that the remainder will be paid at another time, your obligation will cease. "If the holder of a promissory note takes upon himself to give further time for payment, or receives a part of the money and gives time for the rest, the nature of the transaction is essentially changed, and the endorser is no longer responsible."¹ - I said 2: regularly not, etc., i.e. unless the surety has renounced the benefit of discussion, or has denied the suretyship by bad deceit, or has not presented in judgment within the term prefixed by law an absent debtor who does not have liquid goods by which satisfaction may be made to the creditor. - "Besides, if someone cannot provide the damage for which he exhibited himself as surety without the calamity of himself or his own, he is not to be condemned if he provides for himself and his own, as to those things which are necessary for support, if this can be done without fraud and danger of perjury."

3° A surety who pays for the debtor is subrogated to all the rights of the creditor, and therefore has recourse against the same debtor, so that he may seek back from him whatever he was compelled to pay in his place.

4° The obligation of the surety, as being real, passes to his heirs: but as legal only, if that for which someone became surety is owed from legal justice alone, as in the case of suretyship concerning a defendant to be presented in judgment or concerning peace and legality to be preserved (to keep the peace).

5° If several become sureties together, each one is held only for a pro rata part, unless they have obliged themselves in solidum by clear words: which among us is generally done. "An obligation of two individuals running thus: 'We bind ourselves, our heirs, executors and administrators, and every of them firmly by these presents,' is joint and several. - 4 Watts, 50."²

1034. You will resolve. - 1° Those who became sureties by inscribing their name on another's bills of exchange or note, when the principal debtor does not pay, are held from justice to fulfill the obligation assumed; but they can recover the money which they are compelled to pay, and all expenses, from the principal debtor, or from another who earlier inscribed his name on the bills of exchange or note.

2° Those who provided themselves as sureties for public officials cannot make themselves immune by compensation, even if by the fraud of the officials they undergo great damage.

3° Those who became sureties that a defendant would be presented for judgment, or concerning peace and legality to be preserved, if, the defendant fleeing, or peace and laws being violated, they hide their goods, or avoid paying the fine to which they are subject, do not seem to violate commutative justice, unless it is a question of a debt or an injury to be estimated by price. Yet they are guilty of perjury who falsely assert that they are worth as many coins as the judge demands for bail; for among us they must assert this under the faith of an oath.

Note. - It is licit to accept a price for suretyship, even if no danger is feared; because of itself it is estimable by price.