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surety:
(14c)
1. Someone who is primarily liable for paying another’s debt or performing another’s obligation; specifically, a person who becomes a joint obligor, the terms of the undertaking being identical with the other obligor’s, and the circumstances under which the joint obligation is assumed being such that, if the joint obligor becomes required to pay anything, he or she will be entitled to complete reimbursement. * Although a surety is similar to an insurer, one important difference is that a surety often receives no compensation for assuming liability. A surety differs from a guarantor, who is liable to the creditor only if the debtor does not meet the duties owed to the creditor; the surety is directly liable. [1]
1. A person who engages under a contract of suretyship to answer for the debt, default, or miscarriage of another. 50 Am J1st Suret §§ 2, 3. For some purposes, inclusive of a guarantor. UCC § 1-201(40).
As applied to persons, the word has an established and well-known meaning in the minds of most people, and indicates an obligation to stand for the sum absolutely, unless discharged by the supine negligence of the obligor after notice. It is in broad contrast with the word “guaranty” which imports a conditional liability, that is, liability if due steps are taken against the principal debtor. Marberger v Poss, 16 Pa 9.
See suretyship. [2]
1. A person who promises to pay the debt or to satisfy the obligation of another person (the principal). As opposed to the obligation of the guarantor, the obligation of a surety is both primary and absolute; that is, it does not depend upon a default by the principal. [3]
Excerpt from George W. Brandt’s The Law of Suretyship and Guaranty (3d ed. 1905):
“The words surety and guarantor are often used indiscriminately as synonymous terms; but while a surety and a guarantor have this in common, that they are both bound for another person, yet there are points of difference between them which should be carefully noted. A surety is usually bound with his principal by the same instrument, executed at the same time and on the same consideration. He is an original promisor and debtor from the beginning, and is held ordinarily to know every default of this principal. Usually the surety will not be discharged, either by the mere indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby. On the other hand, the contract of the guarantor is his own separate undertaking, in which the principal does not join. it is usually entered into before or after that of the principal, and is often founded on a separate consideration from that supporting the contract of the principal.” [4]
Excerpt from Laurence P. Simpson’s Handbook on the Law of Suretyship (1950):
“A surety, in the broad sense, is one who is liable for the debt or obligation of another, whether primarily or secondarily, conditionally or unconditionally. In other words, the term surety includes anyone who is bound on an obligation which, as between himself and another person who is bound to the obligee for the same performance, the latter obligor should discharge. In this sense, suretyship includes all accessorial obligations. By such terminology, guarantors and indorsers are kinds of sureties. . . . A surety, in the narrow sense, is one who is liable in form primarily on the debt or obligation of another. His obligation is accessorial to that of the principal debtor, but it is direct and not conditioned on the principal debtor’s default. in this sense, suretyship differs from guaranty and indorsement, which are conditional, secondary obligations. , . . The word surety is in the majority of American decisions used in the narrower sense to indicate a primary obligation to pay another’s debt, to distinguish it mm the secondary obligation of a guarantor. This terminology has the advantage of indicating by the use of the one word ‘surety’ an obligation which is at once one to pay another’s debt, but which at the same time is not conditioned upon another’s default.” [5]
Related Terms:
suretyship – a contractual relation, resulting from a primary, original, absolute, and unconditional engagement, whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal.
Types of Sureties:
compensated surety: (1902) A surety who is paid for becoming obliged to the creditor; especially, one that engages in the business of executing suretyship contracts in exchange for premiums, which are determined by an actuarial computation of risks. * A bonding company is a typical example of a compensated surety. — aka commercial surety.
cosurety: See COSURETY.
gratuitous surety: (1900) A surety who is not compensated for becoming obliged to the creditor. * Perhaps the most common example is the parent who signs as a surety for a child.
guarantor surety: See GUARANTOR.
subsurety: See SUBSURETY.
successive surety: (1829) A surety whose obligee is also the principal for whom another set of sureties is liable.
Excerpt from Herschel W. Arant’s Handbook of the Law of Suretyship and Guaranty (1931):
“The term successive sureties indicates the relations that exist where the obligee of one set of sureties is the principal for whom another set of sureties is liable. . . . The relation of successive sureties exists where the obligee of one or more sureties is also the principal for whom another set of sureties is liable. For example, A and B are sureties on a sheriff’s official bond. The sheriff appoints a deputy and C and D sign his bond to the sheriff as sureties. If the sherriff’s sureties are required to pay for the deputy’s default, they are entitled to reimbursement either from the sheriff, their principal, or from those who are liable to the sheriff, namely, the deputy sheriff or his sureties.” [6]
supplemental surety: (1817) Someone who has given a promise of a security to an obligee, in addition to the promises of the principal and one or more sureties.
Excerpt from Herschel W. Arant’s Handbook of the Law of Suretyship and Guaranty (1931):
“The term supplemental surety is used to designate a person who has given his promise as security to an obligee, in addition to those of the principal and one or more sureties. The sureties who are bound in the first instance with the principal are usually sureties in the restricted sense, since their promise is usually in the same terms as that of the principal, and the supplemental surety, strictly speaking, is generally a guarantor, his undertaking usually being expressly conditioned on nonperformance by the principal and the other sureties. One may, however, though he is a surety in the restricted sense, still be a supplemental surety, if it is understood between himself and the other obligors that he may require full reimbursement in case he is required to pay. As to the supplemental surety, each of the other obligors is a principal, and each owes a duty to reimburse him, if he is required to pay. in the absence of an agreement to the contrary, each indorser of a bill or note is a supplemental surety for each prior party.” [7]
surety of the peace: (16c) Hist. A surety responsible for ensuring that a person will not commit a future offense. * It is required of one against Whom there are probable grounds to suspect future misbehavior. — aka surety for the peace; surety for the good behavior. See SUPPLICAVIT.
Excerpt from William Waller Hening’s The Virginia Justice (4th ed. 1825):
“Surety for the good behaviour resembles in so many instances surety for the peace, both as to the manner in which it is to be taken, superseded, and discharged, that it will not require a particular consideration . . . . [A] man may be bound to his good behaviour for causes of scandal against good morals, as well as against the peace; as for haunting bawdy houses with women of bad fame, or for keeping such women in his house. Thus, also, night-walkers; eaves-droppers; such as keep suspicious company or are reported to be pilferers or robbers; such as sleep in the day and walk in the night, common drunkards; whoremasters; the putative fathers of bastards; cheats; idle vagabonds; and other persons whose misbehaviour may reasonably bring them within the general words of the statute, as persons not of good fame; an expression it must be owned of so great a latitude, as leaves much to be determined by the discretion of the magistrate himself. But if he commits a man for want of sureties, he must express the cause thereof with convenient certainty; and take care that such case be a good one.” [8]
voluntary surety: (17c) A surety who receives no consideration for the promise to act as a surety. — aka accommodation surety.
2. A formal assurance; especially, a pledge, bond, guarantee, or security given for the fulfillment of an undertaking.
surety and fidelity insurance: See fidelity insurance under INSURANCE. ‘
surety bond: See PERFORMANCE BOND.
surety company: See COMPANY.
surety insurance: See guaranty insurance under INSURANCE.
References:
Disclaimer: All material throughout this website is compiled in accordance with Fair Use.
[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949). Edited by William S. Anderson. © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY. Library of Congress Catalog Card No. 68-30931
[3]: Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine (James Arthur 1871-1949). Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning. ISBN 0-8273-4874-6.
[4]: 1 George W. Brandt, The Law of Suretyship and Guaranty § 2, at 9 (3d ed. 1905).
[5]: Laurence P. Simpson, Handbook on the Law of Suretyship 6, 8-9 (1950).
[6]: Herschel W. Arant, Handbook of the Law of Suretyship and Guaranty 13 (1931).
[7]: Herschel W. Arant, Handbook of the Law of Suretyship and Guaranty 12-13 (1931).
[8]: William Waller Hening, The Virginia Justice 685 (4th ed. 1825).
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