Undertaking by a natural or legal person, called a surety, to guarantee the proper performance of an obligation (eg a contract, repayment of a loan) subscribed by a third party debtor of the obligation. This guarantee applies to all of the guarantor’s assets, it is then described as “personal”, or on one or more properties named by name, and is therefore described as “real”.
Its particularity is that it is only a conditional commitment given in the event that the principal debtor does not respect his obligations
It ends with the extinction of the principal obligation of which it is only the accessory.
The bond is either “simple” which is the rule in civil law
- the guarantor may require the creditor to sue the debtor first and, in the event of default, then turn against it (so-called “discussion” benefit);
- in the case of multiple securities, each of them can be prosecuted only for its own part (so-called “division” profit).
Conversely, if the bond is qualified as ” solitary ” * customary provision of commercial law * the surety waives in advance the benefits of division and discussion. It can, therefore, be pursued in parallel with the debtor and for the entirety of the bonded amount (so-called passive solidarity), even if it then turns against other sureties (co-discounters).
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