FIDEIUSSIONE. – Contract by which one party, binding himself personally toward the creditor, guarantees to him the performance of an obligation of another.
In imperial law, although the surety intervened in the act by which the parties assumed their obligations and responded to analogous questions, the f. was always an accessory contract, and the surety could not be proceeded against before the debtor. In Lombard law, on the other hand, the surety assumed exclusive responsibility for payment, released the principal debtor, and took the debt upon himself. Thus the creditor could proceed directly against him and in preference to the debtor (G. Salvioli, Storia del dir. ital., 9ª ed., Torino 1930, p. 579).
Under current Italian legislation, which more closely follows the principles of natural equity (Cod. civ., arts. 1936–1937), the f. is accessory to the principal obligation, whose vicissitudes it ordinarily follows. In relations with the creditor, the surety is jointly and severally liable with the principal debtor, unless the beneficium excursionis has been established in his favor.
As against the principal debtor, the surety who has paid is by law subrogated to all the rights that the creditor held against the debtor. The intention to provide f. must be expressed and may also concern a future or conditional obligation.
In the CIC, clerics are forbidden to act as sureties for the obligations of others, even with their private assets, without the permission of the Ordinary. A fortiori, they may not do so with Church property, which may not be burdened with any encumbrance without the permission of the same Ordinary (can. 137).