suretyship
n . 保证人的地位[责任]
保证人的地位[责任]
Suretyship \
Sure "
ty *
ship \,
n .
The state of being surety ;
the obligation of a person to answer for the debt ,
default ,
or miscarriage of another .
--
Bouvier .
[
1913 Webster ]
SURETYSHIP ,
contracts .
An accessory agreement by which a person binds himself for another already bound ,
either in whole or in part ,
as for his debt ,
default or miscarriage .
2 .
The person undertaken for must be liable as well as the person giving the promise ,
for otherwise the promise would be a principal and not a collateral agreement ,
and the prommissor would be liable in the first instance ;
for example ,
a married woman would .
Not be liable upon her contract ,
and the person who should become surety for her that she would perform it would be responsible as a principal and not as a surety .
Pitm .
on P . &
S .
13 ;
Burge on Sur .
6 ;
Poth .
Ob .
n .
306 .
If a Person undertakes as a surety when he knows the obligation ,
of the principal is void ,
he becomes a principal :
2 Id .
Raym .
1066 ;
1 Burr .
373 .
3 .
As the contract of suretyship must relate to the same subject as the principal obligation ,
it follows that it must not be of greater extent or more onerous '
either in its amount ,
or in the time or manner ,
or place of performance ,
than such principal obligation ;
and if it so exceed ,
ii will be void ,
as to such excess .
But the obligation of the surety may be less onerous ,
both in its amount ,
and in the time ,
place and manner of its performance ,
that of the principal debtor ;
it may be for a less amount ,
or the time may be more protracted .
Burge ,
on Sur .
4 ,
5 .
4 .
The contract of suretyship may be entered into by all persons who are sui juris ,
and capable of entering into other contracts .
See Parties to contracts .
5 .
It must be made upon a sufficient consideration .
See Consideration .
6 .
The contract of suretyship or guaranty ,
requires a present agreement between the contracting parties ;
and care must be taken to observe the distinction between an actual guaranty ,
and an offer to guaranty at a future time ;
when an offer is made ,
it must be accepted before it becomes binding .
1 M . &
S .
557 ;
2 Stark .
371 ;
Cr .
M . &
Ros .
692 .
7 .
Where the statute of frauds ,
29 Car .
II .,
c .
3 ,
is in force ,
or its principles have been adopted ,
the contract of suretyship "
to answer for the debt ,
default or miscarriage of another person ,"
must be in writing , &
c .
8 .
The contract of suretyship is discharged and becomes extinct ,
1st .
Either by the terms of the contract itself .
2d .
By the acts to which both the creditor and principal alone are parties .
3d .
By the acts of the creditor and sureties .
4th .
By fraud .
5th .
By operation of law .
9 .-
Sec .
1 .
When by his contract the surety limits the period of time for which he is willing to be responsible ,
it is clear he cannot be held liable for a longer period ;
as when he engages that an officer who is elected annually shall faithfully perform his duty during his continuance in office ;
his obligation does not extend for the performance of his duty by the same officer who may be elected for a second year .
Burge on Sur .
63 ,
113 ;
1 McCord ,
41 ;
2 Campb .
39 ;
3 Ad . &
Ell .
N .
S .
276 ;
2 Saund .
411 a ;
6 East ,
512 ;
2 M . &
S .
370 ;
New R . (
5 B . &
P .)
180 ;
2 M . &
S .
363 ;
9 Moore ,
102 .
10 .-
Sec .
2 .
The contract of suretyship becomes extinct or discharged by the acts of the principal and of the creditor without any act of the surety .
This may be done ,
1 .
By payment ,
by the principal .
2 .
By release of the principal .
3 .
By tender made by principal to the creditor .
4 .
By compromise .
5 .
By accord and satisfaction .
6 .
By novation .
7 .
By delegation .
8 .
By set -
off .
9 .
By alteration of the contract .
11 .-
1 .
When the principal makes payment ,
the sureties are immediately discharged ,
because the obligation no longer exists .
But as payment is the act of two parties ,
the party tendering the debt and the party receiving it ,
the money or thing due must be accepted .
7 Pick 88 ;
4 Pick .
83 ;
8 Pick .
122 .
See Payment .
12 .-
2 .
As the release of the principal discharges the obligation ,
the surety is also discharged by it .
13 .-
3 .
A lawful tender made by the principal or his authorized agent ,
to the creditor or his authorized agent ,
will discharge the surety .
See .
2 Blackf .
87 ;
1 Rawle ,
408 ;
2 Fairf .
475 ;
13 Pet .
136 .
14 .-
4 .
When the creditor and principal make a compromise by which the principal is discharged ,
the surety is also discharged .
11 Ves .
420 ;
3 Bro .
C .
C .
1 ;
Addis .
on Contr .
443 .
15 .-
5 .
Accord and satisfaction between the principal and the creditor will discharge the surety ,
as by that the whole obligation becomes extinct .
See Accord and satisfaction .
16 .-
6 .
It is evident that a simple novation ,
or the making a new contract and annulling the old ,
must ,
by the destruction of the obligation ,
discharge the surety .
17 .-
7 .
An absolute delegation ,
where the principal procures another person to assume the payment upon condition that he shall be discharged ,
will have the effect to discharge the surety .
See Delegation .
18 .-
8 .
When the principal has a just set -
off to the whole claim of the creditor ,
the surety is discharged .
19 .-
9 .
If the principal and creditor change the nature of the contract ,
so that it is no longer the same ,
the surety will be discharged ;
and even extending the time of payment ,
without the consent of the surety ,
when the agreement to give time is founded upon a valuable consideration ,
is such an alteration of the contract as discharges the surety .
See Giving Time .
20 .-
Sec .
3 .
The contract is discharged by the acts of the creditor and surety ,
1 .
By payment made by the surety .
2 .
By release of the surety by the creditor .
3 .
By compromise between them .
4 .
By accord and satisfaction .
5 .
By set off .
21 .-
Sec .
4 .
Fraud by the creditor in relation to the obligation of the surety ,
or by the debtor with the knowledge or assent of the creditor ,
will discharge the liability of the surety .
3 B . &
C .
605 ;
S .
C .
6 Dowl . &
Ry .
505 ;
6 Bing .
N .
C .
142 .
22 .-
Sec .
5 .
The contract of suretyship is discharged by operation of law ,
1 .
By confusion .
2 .
prescription ,
or the act of limitations .
3 .
By bankruptcy .
23 .-
1 .
The contract of suretyship is discharged by confusion or merger of rights ;
as ,
where the obligee marries the obligor .
Burge on Sur .
256 ;
2 Ves .
p .
264 ;
1 Salk .
306 ;
Cro .
Car .
551 .
24 .-
2 .
The act of limitations or prescription is a perfect bar to a recovery against a surety ,
after a sufficient lapse of time ,
when the creditor was sui juris and of a capacity to sue .
25 .-
3 .
The discharge of the surety under the bankrupt laws ,
will put an end to his liability ,
unless otherwise provided for in the law .
26 .
The surety has the right to pay and discharge the obligation the moment the principal is in default ,
and have immediate recourse to his principal .
He need not wait for the commencement of an action ,
or the issue of legal process ,
but he cannot accelerate the liability of the principal ,
and if he pays money voluntarily before the time of payment arrives ,
he will have no cause of action until such time ,
or if he pays after the principal obligation has been discharged ,
when he was under no obligation to pay ,
he has no ground of action ,.
27 .
Co -
sureties are in general bound in solido to pay the debt ,
when the principal fails ,
and if one be compelled to pay the whole ,
he may demand contribution from the rest ,
and recover from them their several proportions of their common liability in an action for money paid by him to their use .
6 Ves .
807 ;
12 M . &
W .
421 8 M . &
W .
589 ;
4 Scott ,
N .
S .
429 .
See ,
generally ,
15 East ,
R .
617 ;
Yelv .
47 n .;
20 Vin .
Ab .
101 ;
1 Supp .
to Ves .
jr .
220 ,
498 ,
9 ;
Ayliffe '
s Pand .
559 ;
Poth .
Obl .
part 2 ,
c .
6 ;
1 Bell '
s Com .
350 ,
5th ed .;
Giting time ;
Principal ;
Surety .
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