Civil surety as security for claims


The practice of legal transactions shows that a civil surety is one of the most common methods of securing receivables. In the debt collection process, it increases the creditor's chance of being satisfied.

Civil surety as security for claims

As already mentioned, the civil surety is used to secure claims. In the Polish legal system, it has the character of a named civil law contract (contained in the Civil Code), in which the guarantor undertakes to perform the obligation towards the creditor in the event that the debtor fails to perform the obligation.

As a rule, the guarantor is liable to the creditor as a joint and several co-debtor of the main debtor (if the surety agreement does not provide otherwise) of the liability of the guarantor (e.g. priority of ineffectiveness of enforcement against the debtor's property). In terms of form, the surety agreement should be concluded in writing, otherwise being null and void. The most characteristic feature of the surety agreement is its accessory nature - it depends on the main obligation that it secures (this distinguishes the surety, among others, from a spontaneous guarantee).

The scope of the guarantor's obligation is determined by the respective scope of the debtor's obligation. The subject of the main obligation may be the subject of the civil surety not only in cash, but also in non-cash. In such a case, the surety covers any compensation due due to default. Civil surety may be limited to a part of the principal obligation or to a specified amount, as well as to the duration of the guarantor's liability.

Civil surety and the defaulting debtor

If the debtor is late with the performance, the creditor should immediately notify the guarantor. If the date of payment of the debt is not specified or if the payment of the debt depends on notice, the surety may, after six months from the date on which the civil surety was concluded, and if the surety for future debt - from the date on which the debt arises, demand that the creditor summons the debtor for payment. or terminated it with the earliest date. If the creditor fails to comply with the above-mentioned request, the surety's obligation shall expire.

The surety may raise against the creditor all charges that are due to the debtor; in particular, the surety may set off the debtor's claim against the creditor. In the relations between the guarantor and the debtor, an interesting thesis from the judgment of the Supreme Court of September 30, 1996, III CZP 85/96:

The surety may not evade the legal consequences of his declaration of will due to an error made fraudulently by the debtor as to his solvency on the date of the surety.

After satisfying the creditor, by law the surety enters his legal position with respect to the debtor, from whom he may demand satisfaction.

It should also be borne in mind that the surety agreement is not closely related to the person of the surety and the obligations arising from it are transferred to the heirs.