The bondsman is part of the bond contract. It undertakes with the creditor of the main obligation to guarantee the satisfaction of the debt in case the debtor cannot afford it.
That is, the guarantor is the person who agrees to pay or fulfill an obligation for a third party if that person does not. He has a subsidiary obligation to the creditor.
The contract is with the creditor and not with the debtor. This means that you do not need the debtor’s authorization to post the bond. The bond will be effective and valid even if the debtor is unaware of it.
The main features are:
- Accessory: Its function is not to fulfill your debt, but rather to guarantee another person’s debt if that person does not fulfill it. That is why it is an accessory obligation.
- Subsidiarity: the obligation will only apply when the debtor of the obligation does not comply with it.
- Limitation: Only the debt between the creditor and the debtor can be obligated. That is, if the debtor has a debt of $100 and is not responsible for it, the guarantor cannot be required to pay more than this amount.
- It can be of a charitable nature: Although the bond has a purely subsidiary character, it can be agreed upon in solidarity. This means that the creditor, to satisfy his debt, may address the debtor or the guarantor indistinctly.
The assumptions that must be met are:
- Have sufficient financial capacity.
- A certain economic position is not required, but you must be solvent.
- The bond is a personal guarantee, which implies that you respond with all your assets to the guaranteed debt.
The obligation disappears due to the following circumstances:
- If the main obligation is extinguished, that is, the debtor pays his debt to the creditor. In that case, the bond is without object and the guarantor’s obligation is extinguished.
- Confusion: If the surety and the debtor end up being the same person, the bond will no longer exist. For example, if the debtor dies and the guarantor inherits him, he would be both debtor and guarantor and therefore the bond would be extinguished, leaving the main obligation pending.
Debtor – guarantor – creditor relationship
Let’s see the relationship between the following actors:
- With the creditor: with the creditor is with whom he celebrates the guarantee contract. The creditor will not be able to request the payment of the debt without having previously requested the debtor and that the debtor did not comply with the obligation. For this, the guarantor has a benefit known as the benefit of the foreclosure. This benefit makes it refuse to comply with the obligation when the debtor’s assets have not been pursued by the creditor. In addition, it can indicate to the creditor assets of the debtor that he has not requested as payment of the obligation.
- With the debtor: the guarantor and the debtor have no contract. But the guarantor has two actions that he can exercise against the debtor despite not having entered into any contract with him.
- Relief action: consists of the debtor releasing the guarantor from his obligation to comply with the satisfaction of the bonded debt.
- Reimbursement action: consists in that, once the debt has been paid by the guarantor, he can demand from the debtor the total amount of the debt that he has paid for him plus legal interest.