https://doi.org/10.21697/zp.2023.23.4.01
In modern European codifications, the basic form of surety‘s recourse against the debtor is cession of rights from the creditor to the surety by mere operation of law. In the Austrian and German codes, this is the only means of recourse available to the guarantor regardless of his contractual relationship with the debtor, while the French Code grants him an alternative instrument, a stand-alone claim on the debtor for reimbursement. The authors of the French Code, as I will try to show, based the latter means of recourse on the Roman model, which granted the surety claims based either on the contract of mandate or on the conduct of another’s business without mandate. These were the only means of recourse fully compatible with the Roman construction of suretyship as an obligation to pay the debt incumbent on the principal debtor. Cession of rights by mere operation of law on the other hand did not enter the modern doctrine until the nineteenth century. The first step of its evolution was the idea to grant the surety, who had already payed the debt, the possibility to acquire from the creditor his claims, both on the debtor and on the other sureties, by means of a contract. This option however required rejection of one of the principles, which have been commonly recognized from Roman law to the jurisprudence of the nineteenth century: 1. that the repayment of a debt by a third party leads to the extinguishment of the claim, 2. that the surety is liable for another’s debt, viz. the one incumbent on the principle debtor. In this article, I present the history of the efforts jurists made from Roman times, through the Middle Ages, to the current jurisprudence to get round these difficulties. Until the eighteenth century, the strategies they proposed circumvented the latter assumption, while especially the French and German doctrine chose to breach the former principle. Instead, the Austrian doctrine adopted the opinion that the surety pays a debt which is materially someone else’s, but formally his own, and thus his payment leaves the principal claim in force.
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