SURETYSHIP. – A contract by which one party, personally obligating himself toward the creditor, guarantees, in the latter’s regard, the fulfillment of another’s obligation.
In imperial Roman law, although the surety intervened in the act by which the parties bound themselves and answered to similar interrogations, suretyship remained an accessory contract, and the surety could not be compelled before the principal debtor. In Lombard law, by contrast, the surety assumed exclusive responsibility for payment, thereby releasing the principal debtor and taking the debt upon himself. Hence the creditor could proceed directly against the surety and enjoyed preference (G. Salvioli, Storia del dir. ital., 9th ed., Turin 1930, p. 579).
Under current Italian legislation, which more closely adheres to principles of natural equity (Civil Code, arts. 1936–1937), suretyship is accessory to the principal obligation, whose vicissitudes it normally follows. In relation to the creditor, the surety is jointly and severally liable with the principal debtor, unless the beneficium exclusionis has been stipulated in his favor.
With respect to the principal debtor, the surety who has paid is, by operation of law, subrogated to all the rights that the creditor had against the debtor. The intention to furnish suretyship must be expressed and may extend even to a future or conditional obligation.
The Code of Canon Law forbids clerics to stand surety for another’s obligations, even with private property, without the permission of the Ordinary. Still less may they do so with Church property, which cannot be burdened with any encumbrance without the same Ordinary’s consent (can. 137).