Main points of the contract of guarantee

lawyer bail










Sometimes they ask us to sign one contract of guarantee in favor of a friend or relative and it is important to have a basic concepts of how bail works.

On the contract bond a natural or legal person is obliged to pay or enforced by a third in the case of not doing it (art. 1.822 Civil Code).

The bond can be free or expensive, although it is usually free. And this is an accessory contract: can not exist without a principal obligation.

The bond may be limited, up to a specific amount, o ilimitada, including both the principal obligation as accessory obligations, even include the costs of trial (art. 1.827 the C.C.).

The bond should be on an obligation that is valid (art. 1.824 C.C.). It can be set on a future obligation. But it can not be for a different obligation to the principal and the surety can not be bound to more than the principal debtor agrees.

The bond must be explicit and its interpretation in doubt is strict and restricted (art. 1.827 the C.C.).

In case of guarantors, respond to the obligation if the debtor does not, therefore the principal obligation, as accessories thereof and court costs.

What can we do if we require payment by the debtor?

If you have signed the bond with the benefit of "order or excursion" have the right to avoid payment until the insolvency is credited. For this, we noted that the debtor's assets are realizable within the Spanish territory and are enough to pay the debt.

Typically, we can not oppose this "benefit" in contracts bond, normally requires an express waiver of the guarantor, or asked to compel severally with the debtor.

Nor can we make use of this benefit in the event of insolvency of the debtor, or when the debtor can not be sued in Spain.

We could have otherwise the benefit of "division" of requiring that the debt be split between all latches. But usually is often removed in the cases we have cited above.

As guarantors, We can assert against the requirement to pay all exceptions that the debtor had, but you can not rely purely personal exemptions the debtor (art. 1.853 C.C.).

The guarantor of the debtor can get over from the bond or a sufficient guarantee in the event that the guarantor is sued, in the event of bankruptcy or insolvency of the debtor, or the expiration of the bond.

The guarantor who pays the debt action has recoverable against the debtor, I may request the principal, statutory interest, costs incurred and damages that come.

By payment, the surety is subrogated to the rights which the creditor had against the debtor.

Generally, bonds are required by banks with the chance of a loan or mortgage, and worded will have excluded any benefit to the guarantor.

My personal recommendation: Avoid if you can bail, and at worst set a maximum limit on time and.

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