Chapter V: On Subsidiary Contracts

St. Alphonsus, III, 912; ed. G., II, p. 317, where he simply reports the things which Busenbaum wrote; Lehmkuhl, I, 1351; Pruner, n. 750.

Those contracts are called SUBSIDIARY, or accessory, which are employed for the greater security of a promise made. They are suretyship, pledge, antichresis, and hypothec.

1170. DEFINITION. Suretyship or caution (cautionnement) is a contract by which someone takes upon himself another's obligation to be fulfilled, if the principal debtor has not paid.⁰⁶

For suretyship it is always licit to accept a price, even if peril is absent; because the assumption of such an obligation of itself is estimable by price. But the obligation which arises from suretyship is real; whence it passes to heirs (H. Ap., X, 232).

PRINCIPLES. I. No one can be a surety unless he has free administration of goods sufficient for this. Whence those who cannot be principally obligated cannot give surety (cf. 1038).

II. The surety is obligated as a secondary debtor. Whence: 1. he is held toward the creditors concerning the obligations of the principal debtor, but only in his default or impotence, and indeed juridically proved; 2. if he has paid for the debtor, he is subrogated to all the rights of the creditor; and therefore he has recourse against this debtor, so that from him he may demand back those things which he was compelled to pay in his place.

III. The debtor is held toward the surety concerning the payment made by him. And indeed, if by his fault he did not pay, he is held to compensate to the surety, who paid for him, not only the debt itself, but also damages and all expenses. But if without fault, for example on account of impotence, he did not pay, he seems to be held only to the debt (III, 912).

1171. From these things you resolve: a) Those who constitute themselves sureties when they are incapable of paying, especially if they doubt whether the principal debtor can pay, sin gravely; and therefore, if the creditor suffers some damage from that fraud, they are held to repair it.

b) Those who have constituted themselves sureties for public officials cannot render themselves immune by compensation from the public treasury, even if by the fraud of the officials they undergo great damage.

1172. Pledge is a contract by which a debtor hands over some movable thing to the creditor, for the securing of payment to be furnished.⁰⁷ The thing handed over is called pledge (gage).

1. The DEBTOR, handing over the pledge, is held: a) to hand over to the creditor a suitable thing; b) to refund necessary and useful expenses which the creditor has made in preserving the thing; c) not to demand back the pledge before he has paid the whole debt, unless the creditor abuses it.

2. The CREDITOR, accepting the pledge, ought: a) not to use the thing entrusted to him, unless with at least the presumed consent of the debtor; because it is another's thing handed over only for security. But the owner is presumed to consent if no damage arises to him from it; b) to guard the pledge as a good father of a family; c) to compute the fruits perceived from the pledge, and the value of the use, in compensation both of the returns which are owed to him on account of the sum handed over, and of the capital itself, if the fruits are sufficient, so that equality may be preserved; d) not to sell the pledge by his own authority, nor to demand that it be sold by sentence of the judge, unless the debtor is in culpable delay and has first been warned.

Note. From CANON LAW, sacred things, as chalices, chasubles, etc., cannot be pledged, unless for assisting the poor or churches (H. Ap., X, 233).

1173. Antichresis is a contract by which a debtor hands over an immovable thing to the creditor in pledge and in usufruct, with this law, that the fruits be computed first for the payment of the returns, and then, if anything remains, for the payment of the capital.⁰¹

The pact of antichresis is not permitted everywhere, on account of the danger of usury.⁰² Yet it is licit if equity is preserved in it. Now: a) The creditor has only a right of perceiving the fruits, but no right into the ownership itself, as in hypothec. b) But he himself is held to guard that good diligently as his own; to pay the annual taxes inhering in it, unless otherwise agreement was made; to make other useful and necessary expenses, but with a right of compensation from the fruits of the thing. St. Alph., III, 916.

1174. Hypothec, insofar as it is a contract, is an agreement by which a debtor obliges an immovable thing to the creditor, for security of the credit.⁰³

Hypothec confers on the creditor a real right in the thing, into whatever hands this thing may have come, so that from it, before the other chirographic creditors, he can seek payment of the debt for himself (H. Ap., X, 233).

1. Hypothec is a SOLEMN contract, demanding that various dispositions of law be observed. He who cannot freely dispose concerning his own things cannot enter it.

Besides conventional hypothec, there is given another, legal, which is conceded by the law itself, for example to wards in the goods of a guardian; and another, judicial, which proceeds from a sentence of the tribunal, in favor of him who has obtained the sentence (cf. 1003).

2. That hypothec may attain its effect: a) it must be constituted upon a determined immovable thing; b) it must be made public; which happens through inscription in a public book, by an official destined for this. Hypothec immediately from inscription obtains its right, so that the one inscribed earlier is stronger in right. Hence care must be taken that judicial hypothec be inscribed as soon as possible.

Note. The inscription must be renewed within a certain term stated by law, for example in France within 10 years, in BELGIUM (from the law of 1851) within 15 years, in ITALY within 30 years, in SPAIN (from the hypothecary law, 4 Feb. 1861) within 20 years. In GERMANY the inscription need not be renewed.

"It remains," says St. Alphonsus (Praxis Conf., n. 44, fin.), "that here it be warned that, if there are found some contracts received by use through a long time in some region (where especially missions have been made), the confessor ought not to condemn them unless first, all the circumstances having been inspected; since at first sight many contracts appear usurious or unjust, but afterward, the matters having been weighed better, they are not to be held as such."