Suretyship Issue 4

The Rights of the Surety

The liability of the surety is alleviated by certain benefits. 

Since these benefits derive from the Common law, the surety will enjoy their protection if they are not expressly excluded.  

The benefit of excussion

The benefit permits the surety to compel the creditor to recover as much as possible of the due debt from the principle debtor, before proceeding against the surety.

The surety must raise this defence at the beginning of the proceedings against him or her, otherwise it is forfeited.

If the attempt by the creditor against the principle debtor prove unsuccessful, the creditor may recover from the surety (who compelled the creditor first to proceed against the principal debtor) any costs incurred as a consequence of this.

The benefit of excussion is not available to the surety if the surety has renounced it, or has bound himself or herself as surety and co-principal debtor; or where excussion is not possible or would serve no purpose (for example, because the principle debtor cannot be found, or has a personal defence against the creditor’s claim).

The benefit of division

This defence is available where there are several sureties in respect of one and the same obligation, and the creditor attempts to recover the entire debt which is due from a single surety. 

Such surety is the at liberty to demand that the creditor divide his or her claim between the available sureties, so that his or her (the surety’s) liability may be restricted to his or her proportionate share of the principle debt.

This benefit is also unavailable to the surety if the surety has renounced it, or has bound himself or herself as surety and co-principle debtor.

A surety can, furthermore, not insist that the creditor include in the division a co-surety from whom recovery is impractical or impossible (for example, one who falls outside the jurisdiction of the court).

In the next issue we will discuss more rights attributable to the surety.

Biblical Perspective

Job 17:3 read with Proverbs 6:1-2

“Lay down now, put me in a surety with thee; who is he that will strike hands with me?”

Meaning that shaking hands when the mouth made a promise was considered the ratification of the contract or promise and thus a man became ensnared with the words of his mouth.