ON SURETIES

PROPOSITION I.

We are bound (says the jurisconsult Gaius) not only in our own name, but also in that of another.

Those who are bound in another’s name are generally called sureties (fideiussores). And a surety accepted in this manner is said to be one who takes another’s obligation upon himself and bids it to be upon his own faith: whence he is also called a fideiussor.

In a strict and proper sense, however—as we understand the term here and as we have resolved to treat of it—a surety is one who, through the intervention of a stipulation, so accedes to the obligation of another that the principal debtor nonetheless remains bound.

And he can be both established and accepted not only unconditionally, but also under a condition, or for a certain time, or even from a certain time.

In the establishment of a surety, however, the consent and will of a person fit for providing surety is absolutely required.

And as a rule, all who can be bound by a stipulation can also provide surety.

Certain persons are excepted, however, for whose benefit the laws, wishing to provide, have taken away from them the power of interceding for others: such as women, soldiers, and others.