Other parties often bind themselves for one who makes a promise, and
these are called sureties; and men are accustomed to accept them in order that
sufficient security may be provided for them.
(1) They can be taken for obligations of any description, that is to say
with respect to property, or with reference to contracts entered into either
verbally, in writing, or by consent. Nor does it make any difference whether
the obligation for which the surety is bound is a civil or a natural one; so
that he can be held liable even on account of a slave, whether he who accepts
the surety from the slave is a stranger, or the master of the former with
reference to what is due to him naturally.
(2) Not only is a surety personally liable but he also leaves his heir obligated.
(3) A surety may bind himself either previously or subsequently to the contraction of the obligation.
(4) Where there are several sureties, they are each liable for the
entire amount without reference to their number; and, therefore, the creditor
is free to demand the entire debt from any of them he wishes. But in accordance
with an Epistle of the Divine Hadrian, the creditor is compelled to bring suit
for his proportion against each one of those who are solvent at the time when
issue is joined; and therefore if any one of the sureties is not solvent at
that time, this increases the burden of the others. But if the creditor has
recovered the entire debt from one surety, the loss is sustained by this one
alone, if he in whose behalf he became surety is not solvent; and he must blame
himself for this, since he could have had recourse to the Epistle of the Divine
Hadrian, and have demanded that an action be brought against him for his share
alone.
(5) Sureties cannot be bound so as to owe more than the party for whom
they are liable; for their responsibility is an accessory to the principal
obligation, and the accessory cannot amount to more than the principal
matter;(1)
but, on the other hand, they may bind themselves so as to
Owe less. Therefore, if the debtor has promised to pay ten aurei, the
surety may lawfully obligate himself for five, but he cannot do this for the
opposite. Again if the debtor unreservedly makes promise of payment, the surety
may give his promise under some condition; but he cannot do the opposite, for
the words less and more are understood to have reference not only to the amount
but also to the time; for to make payment immediately is worth more, and to do
so after a certain time is worth less.
(6) When a surety has made payment for his principal he is entitled to
an action of mandate against him for recovery.
(7) A surety is accepted in Greece in the following terms:
th emh pistei
keleiw, "I order upon my credit," legw, "I say", "I wish", or boulomai, "I desire"; and even if he employs the term fhmi, it will have the same effect as if he had said
legw.
(8) It must be borne in mind that it is the general practice with regard
to the stipulations of sureties that whatever is declared in writing to have
been done is held to have been done; and therefore it is settled but if anyone
states in writing that he has become a surety, everything is deemed to have
been legally complied with.
FOOTNOTES
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