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 .
安装中文字典英文字典查询工具!
中文字典英文字典工具:
复制到剪贴板
英文字典中文字典相关资料:
Hopper | Book Hotels, Flights, Car Rentals More Join 120 million travelers in planning your next trip Get the best price on hotels, homes, flights, and car rentals
Book Travel on Mobile | Hopper Score unbelievable travel deals exclusively in the Hopper App
Hotels | Cheap Hotel Deals Discounts - Hopper Get the best price on thousands of hotels and apartments on Hopper Find deals, compare reviews, and save on your next stay
Exclusive Travel Deals Discounts | Hopper Discover the best travel deals on hotels and flights Save big with exclusive discounts and limited-time offers on Hopper
Welcome to Hopper! Hopper is a travel app that uses data-driven tools to save you time, money, and anxiety in your quest to book the perfect trip
Cheap Flights, Airline Tickets Airfare Price Tracking - Hopper Find cheap flights and save money with Hopper Hopper compares hundreds of airlines to find you the best airfare deal and tell you when to book
Booking on Hopper. com Booking Booking on Hopper com Hopper com is the web version of the Hopper app, available for select travelers in the United States to shop, book, and manage flights For all other travelers, Hopper com is available as a resource for learning about Hopper products and services Travelers with access to booking on Hopper com can use the same credentials to sign in on the app and on the web Good
How do I book a flight on Hopper? How to Book a Flight in the Hopper App 1 Search for Flights Enter your departure and arrival cities and select the desired airports, then select either ro
Flights - Hopper Why is it sometimes more expensive to change my flight than to purchase a new one on Hopper?
About Us - Hopper About Us No spam No ads No time wasted — just the confidence that you're booking smart and saving money Hopper is the award-winning mobile app that doesn't just let you book flights, hotels, and car rentals from your phone, it also tells you when is the best time to buy! Booking travel can be complex and confusing, and travelers often don't have the information they need to get the best