SURETYSHIP. - A contract by which one party, binding himself personally toward the creditor, guarantees to him the performance of another's obligation.
In imperial law, although the surety intervened in the act by which the parties bound themselves and answered to analogous claims, the f. was always an accessory contract and the surety could not be sued before the debtor. In Lombard law, on the other hand, the surety assumed the exclusive responsibility to pay, released the principal debtor and took the debt upon himself. Hence the creditor could proceed directly against him and by preference (G. Salvioli, Storia del dir. ital., 9th ed., Turin 1930, p. 579).
In current Italian legislation, which adheres more closely to the principles of natural equity (Cod. civ., arts. 1936-1937), the f. is an accessory to the principal obligation, whose fortunes it regularly follows. The surety, in his relations with the creditor, is solidarily bound with the principal debtor, unless the beneficium excursionis has been stipulated in his favor.
As against the principal debtor, the surety who has paid is substituted by law in all the rights that the creditor had against the debtor. The intention to furnish f. must be expressed and may also concern a future or conditional obligation.
In the CIC clerics are forbidden to become sureties for the commitments of others, even with their private patrimony, without the license of the Ordinary. All the more may they not do so with the goods of the Church, which cannot be burdened with any charge without the permission of the same Ordinary (can. 137)
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Luigi Oldani