INTRODUCTION

A typical model of joint obligation incurred in the exclusive interest of

only one of the debtors is the guarantor.

The demands that the current economic reality poses to us lead us to

to use certain legal tools such as contracts, in order to achieve
objectives that the very economic and civil dynamics demand in order for us to develop
in the environment, within a globalized reality the need for speed and
trust leads us to take into account certain guarantees for the use of these
tools, we can find these guarantees in our legal framework
legal that provides, such as the guarantee contract which is widely used today with
to ensure the trust of relevant relationships for the law, the
compliance with obligations and ultimately avoid the detriment of whoever
pursues the obligation previously established in its favor.
THE BAIL

1. DEFINITION

It is a contract by which a person called the guarantor agrees to respond for

the payment of a debt of another person called debtor, in case of
noncompliance by the debtor. The guarantee can be established not only in favor of the
debtor but of another guarantor.

The surety contract arises with the aim of guaranteeing compliance with a
obligation, therefore we can say that it is a guarantee contract, this guarantee
compliance also broadens the credit possibilities that the debtor may
acquire, in this way we can say that the guarantee contract functions as a
"insurance" by which the debtor will fulfill their obligations and the creditor will not be able to

to be harmed by the non-execution of this, since there is a guarantor involved

who will responsibly respond with the execution of the bond, for the omission of
compliance, of course, previously established a guarantee.

2. HISTORY

Etymologically, bond derives from Latin, 'fides' 'fiducia', meaning 'faith'

security. (1) FARINA, Juan M. Modern contracts, Bs, As, 1993.

The origins of the guarantee are remote, found in the Homeric poems and still
In the Old Testament, as we know, the Romans placed greater importance
the personal guarantees that are real, building ingenious figures that
ensure the fulfillment of obligations, in this way the creditor could
to demand from the debtor as well as from the guarantor, except as stipulated otherwise, Justinian

deposits this authority, granting the guarantor the right to demand from the creditor, to collect

first of all, the debtor, there also existed in the Roman law of Justinian the
figure of joint liability in the event of multiple guarantors, and how
as a means of defense, the guarantors had the 'beneficium dividisonis'.

As we can observe in Roman law, the guarantee contract is gaining importance.

form that has not changed much to this day, as we find in our
Civil Code Book VII, second section, named contracts, title X, from article.
1868 until art.1905, similar figures such as the benefit of excussion, benefit of
division, etc.

3. ACCESSORY NATURE OF THE BOND

The surety bond contract has the nature of an accessory contract, as it presupposes the
existence of a main contract, which can be a sale, lease,
location of work, loan or credit, among others.

4. THE FORM OF THE SURETY CONTRACT

This is a contract in the form of ad solemnitatem as established by the article.

1871 of the Civil Code: 'the guarantee must be in writing, under penalty of nullity.'
Other civil codes like the Italian, Spanish, or French attribute to the contract
of bail freedom in form although they do require that the willingness to provide bail must
it is expressed; that is to say, it must result either from a precise declaration of will or from a

unequivocal or certain behavior. Thus, as provided in article 1937 of

Italian Civil Code, article 1827 of Spanish and article 2015 of French.

5. SUBJECTS

Guarantor: is the one who guarantees the payment of the debt contracted by a third party.

Creditor: is the one who accepts the offer or the commitment that the guarantor undertakes.

Debtor: is unrelated to the surety contract

Max Arias Schiber classifies the relationship between the debtor and guarantor into two points;

a) Before the bond has been executed, the guarantor can take measures
precautionary measures against the debtor.
b) After the bond has been executed, the guarantor can demand from the debtor through
subrogation and/or compensation article 1889 1990 Civil Code

5.1 OBLIGATION OF THE GUARANTOR

The Civil Code in article 1873 establishes that the guarantor is obligated by
that to which it had expressly committed, not being able to exceed what
the debtor must; however, it is valid for them to be obligated in a more effective way than

that. The cited article limits the scope of the guarantor's obligation, which is not
refers exclusively to an excess in the amount of the debt, but to everything that
determine that the obligation of the guarantor is more burdensome than that of the principal

thank you. Likewise, the fact that the guarantor can commit in a more effective manner
that the debtor implies taking on the commitment to provide greater security to the
creditor regarding the fulfillment of the main obligation, which is why it results
it is feasible for the guarantee to be reinforced with a penalty clause.

6. LEGAL CONSEQUENCES

Due to its accessory nature, the following consequences arise:

a. The obligation of the guarantor extends only to that which

specifically would have committed, not being able to exceed what is necessary
the debtor.
b. The guarantee can only exist over a valid obligation. The nullity of the
The main obligation entails the nullity of the guarantee.
c. The guarantor can invoke the compensation of what the principal debtor owes.
d. The guarantor cannot be compelled to pay without first exhausting the...
debtor's assets.

7. IMPORTANCE OF THE EXCLUSION OF ASSETS

The right of excussion is the right of the guarantor to oppose the creditor, after the latter...
require for the payment, that the debtor's realizable assets are executed first
within the territory of the Republic. However, the guarantor loses the benefit of
excursion in the following cases:

a. When the guarantor has expressly waived it.

b. When one has been jointly obligated with the debtor.
c. In the event of the debtor's bankruptcy.

8. TYPES OF BONDS

a. SIMPLE OR JOINT.- The debt is divided into equal parts among

the debtors and/or guarantors.
b. JOINT AND SEVERAL.- The guarantor is responsible for the obligation in its entirety, without

right to the benefit of exclusion or division.

c. LIMITED.- The guarantor can be bound by a predetermined amount and
be released from any excess.
d. UNLIMITED.- The guarantor is responsible for the full amount of the main obligation,
his interests and expenses, without any limitation.
d. CONDITIONAL.- Suspensive conditions can be validly agreed upon and
e. resolutory, especially when credits are granted in the future.
f. UNCONDITIONAL.- When it is a pure and simple guarantee that does not
it admits conditions or requirements for its compliance.
g. AUTOMATIC EXECUTION.- It is made effective simply
creditor's request by letter delivered notarized.
h. REVOCABLE. - It may be agreed in some cases the possibility of leaving it.
without effect, especially when it is conditioned to certain
circumstances.
e. IRREVOCABLE.- It does not allow an order of revocation; it has the same

nature of an unconditional guarantee.

9. OBJECT OF THE BOND

The guarantor can guarantee contracts with obligations to give, do, or refrain from doing, but
will always be responsible for the payment of a sum of money, since it is only secured by the
compensation for the breach of the main contract, and that is the guarantor does not
is obliged to fulfill the debtor's obligation, especially if the debtor committed themselves
to give or deliver an asset, to do or not do something.

10. REQUIREMENTS OF EXISTENCE

a) Consent, that is, the agreement of wills between the creditor and the guarantor.
b) Object, which consists of the provision whether it is a thing or a fact, that the guarantor
must pay in case the debtor fails to meet their obligation.
There is a main obligation since, as mentioned, the guarantee ensures
the fulfillment of the main obligation.

11. VALIDITY REQUIREMENTS

a. Capacity to contract, that is, being of legal age and being in enjoyment of
mental faculties, both of the creditor and the guarantor.
b. Form, no formalities are required for it to be valid.
c. Absence of vices, that is to say, that there is no error, fraud, bad faith in the bond.

violence or injury.
d. Illegality in the object, motive or purpose, we generally find this when
the guarantor is obliged to pay for something that is prohibited or illegal; therefore
If the main obligation is illicit, the guarantee will also be.

12. THE EXTINCTION OF THE BOND

12.1. CAUSES OF TERMINATION OF THE GUARANTEE RELATIONSHIP

In the accessory relationship between the “guaranteed obligation” and the “obligation
"fideiusoria" or "bond relationship" implies that the former drags the latter along with it.
second, in such a way that the extinction of the 'guaranteed obligation' represents a
mode of extinction of the "guarantee relationship". As Giusti points out: "when the debt
the principal is extinguished, the debtor's debt is also extinguished by 'reflection'.
But the "guarantee relationship" also extinguishes for causes that affect it.
directly: there are general extinguishing causes that are common to the
generality of mandatory relationships and special extinguishing causes, as they result from
application exclusively to the 'guarantee relationship'.

12.1.1. INDIRECT TERMINATION OF THE "GUARANTEE RELATIONSHIP" BY

EXTINCTION OF THE 'GUARANTEED RELATIONSHIP'

THE PAYMENT OF THE 'GUARANTEED OBLIGATION'

The payment of the 'guaranteed obligation' extinguishes the 'guarantee relationship'. No

However, it should be noted that for this to happen, the sum paid by the
The principal debtor must be charged to the debt or to part of the guaranteed debt.
An imputation problem can arise either because the debtor has several
debts regarding the creditor to whom the guarantee was granted, or because its only
the debt has been guaranteed only in part. In such a case, payment made by the
debtor, if both the debtor and the creditor fail to make the allocation of payment, the following will apply

the criteria for legal attribution and, in that sense, the payment will be applied, first, to
the least guaranteed mandatory relationship or if I had a single debt
guaranteed only in part, it will be charged to the non-guaranteed part.

12.2. PAYMENT IN KIND

The guarantor is also released by the payment in kind made by the creditor.
according to article 1900 of the Civil Code: "the guarantor is released if the creditor
accepts from the debtor a good in payment of the debt, even if later they lose it due to

eviction

12.2.1. PAYMENT BY THIRD PARTY

The payment by a third party does not cause the extinction of the 'guarantee agreement' when...

favor of this the law (Article 1260 of the Civil Code) or the will of the creditor or the
of the debtor (article 1261 of the Civil Code) consent to the subrogation of the payer in
the rights of the creditor with respect to the guarantor. In effect, according to article 1262
from the Civil Code: 'subrogation replaces the substituted party in all rights,
actions and guarantees of the former creditor, up to the amount of those that would have been
"paid". Since the extinction does not occur, the subrogation produces a modification.
subjective on the active side of the "guarantee relationship".

12.3. THE NOVATION

In the case of novation of the 'guaranteed relationship', the extinction of the

"guarantee relationship" in accordance with the provisions of Article 1283 of the Civil Code: "in

the novation does not transfer to the new obligation the guarantees of the obligation
extinguished, unless otherwise agreed. However, in the novation by delegation, the
The obligation is enforceable against the original debtor and their guarantors, in the event that the

the insolvency of the new debtor had been prior and public, or known to the debtor
by delegating your debt.

It should be noted that in the case of the first paragraph, the "unless otherwise agreed"
will require in the case of the bond (in the case of guarantees provided by third parties),
that the guarantor grants their consent.

12.4. THE COMPENSATION

The 'guarantee relationship' can be extinguished by compensation as established.

Article 1291 of the Civil Code: 'the guarantor may invoke the compensation of the ...'
that the creditor owes to the debtor." The possibility that the guarantor can oppose the

compensation of what the creditor owes to the debtor, is derived from article 1885 of
Civil Code. Likewise, the guarantor may oppose the set-off to the creditor iure.
own.

THE ASSIGNMENT OF CONTRACTUAL POSITION

According to Article 1439 of the Civil Code: 'the guarantees established by third parties
people do not go to the dealer without the express authorization of those.
two hypotheses must be distinguished:

(i) that the assigned position is that of the holder of the credit; and,
that the transferred position be that of the debtor holding the guaranteed debt.

The cited article refers to the second hypothesis; that is, when the position
the one granted is that of the subject who holds the guaranteed debt, the 'guarantee relationship'

will subsist if the guarantor expressly authorizes it. In the first hypothesis, the guarantee
transfers to the assignee without the need for the guarantor's authorization.

12.6.CAUSES OF TERMINATION OF THE 'GUARANTEE RELATIONSHIP'

GENERAL ORDER

The payment by the guarantor is the natural means of extinguishing the 'guarantee relationship', which

grants the guarantor the right of recourse against the principal debtor who can act on it
via subrogation or via "action" of recourse.

In the case of multiple debts guaranteed by the same guarantor towards the same
creditor or in the case of the existence of 'guarantee relationships' and mandatory relationships

self between the same guarantor regarding the same creditor, will apply in case that
a payment is made without the debtor or the creditor making the appropriation, the following will apply

the criteria for legal attribution.

12.7. THE CONSOLIDATION BETWEEN THE GUARANTOR AND THE DEBTOR

PRINCIPAL

If consolidation occurs between the guarantor and the principal debtor, Article 1255
The Italian Civil Code establishes that: 'if the same person combines the
qualities of the guarantor and the principal debtor, the guarantee subsists, as long as the

the creditor has interest." According to Giusti, "the extinction of the guarantee is the logic
consequence of the uselessness of the subsistence of a duality of relationships: with the
meeting in the same subject of the two passive qualities that have their cause in
different, but linked mandatory relationships, to the duality of assets
responsibles is replaced by the unit of the heritage and the subject in which it
accumulate the aforementioned qualities only in response to your heritage.
the creditor's guarantee therefore focuses on the resulting assets of the
consolidation

It could be argued that for the Italian legislator, in the case of consolidation between the
the principal debtor and the guarantor, the 'guarantee relationship' is extinguished but consents that the

"The surety relationship" exists when the creditor has an interest.

The Civil Code does not have a similar rule. Article 1903 of the Civil Code states
the consolidation of the debtor with the guarantor does not extinguish the obligation of the
"co-signer." From the transcribed article, it seems to imply that the "guarantor relationship" is
It extinguishes with the consolidation between the debtor and the guarantor, but the sub-guarantee remains.

if it existed.

12.8. THE CAUSES OF EXTINCTION OF THE 'GUARANTEE RELATIONSHIP'

SPECIAL ORDER

12.8.1. THE HARM TO THE RIGHT OF SUBROGATION

Among the causes of termination of the special surety relationship, regulated

According to the Civil Code, we find, first of all, the harm of subrogation.
provided for in article 1902, which establishes that: 'the guarantor is relieved of his obligation'

obligation whenever the creditor cannot be substituted due to some act.

according to this article, the behavior of the creditor that determines
directly the preclusion of the guarantor's right of subrogation in the rights of the
The creditor constitutes an extinguishing cause of the guarantee.

In order for the penalty of the termination of the guarantee relationship to be applied, it is required that

a behavior of the creditor has caused harm and this implies loss
of the right and not simply the difficulty in exercising it. The sanction operates in the
limits of the damage, so that if this is partial, the extinction will be partial
the bond. The action of the creditor preventing subrogation may consist of the
waives the guarantees or in a behavior that implies their loss, such as
it would be the restitution of the asset given in pledge (movable guarantee).

12.9. RELEASE OF THE GUARANTOR IN THE SURETY FOR TERM

DETERMINED

The Civil Code distinguishes the guarantee according to whether the guarantor is obliged to the creditor by

a fixed term or do it for a fixed term. According to the article

Article 1898 of the Civil Code: "The guarantor who undertakes for a specified period remains

free of liability if the creditor does not demand it notarized or judicially

fulfillment of the obligation within fifteen days following the expiration
of the deadline, or abandons the initiated action.

Among the causes of extinction of the 'guarantee relationship', a central place is occupied by the

inertia of the creditor; that is to say, that the creditor has not demanded from the debtor the

due performance. In this sense, the bond, granted for a determined period, is
extinguishes if the creditor does not request the principal debtor, through notarial or judicial means, the

performance due within fifteen days of the expiration of the guarantee period. Seen
from another perspective, we could say that the guarantor will remain obligated after the
expiration of the term of the bond perpetuation of the expiration of said term, there is
required, judicial or by notarial means to the debtor.

The standard assumes that the expiration of the term of the main obligation must
to occur no later than within fifteen days following the expiration of the deadline
from the bond. The rule imposes a burden on the creditor, that of demanding payment from the debtor.

principal within fifteen days following the expiration of the bail term.
The non-compliance with the obligation implies the expiration of the bond.

Article 1898 of the Civil Code has as its antecedent Article 1787 of
Civil Code of 1936 that stated: "The guarantor who committed for a term
determined, is free of responsibility, if the creditor does not demand it judicially
compliance with the obligation at the expiration of the term, or if he abandons the action
initiated.
13. THE BOND FOR FUTURE OBLIGATION

The bond can also be granted to guarantee a future obligation, that is to say,
to guarantee a debt that, at the time of the celebration of the surety contract,
It does not exist, although it will probably exist as a consequence of a fact.
productive more or less imminent.

According to article 1872 of the Civil Code: "Guarantee can be provided in

guarantee of future obligations that are determined or determinable whose amount is not
still known, but one cannot claim against the guarantor until the debt is
liquid. The bond for a conditional or term obligation is equally valid.

14. THE GUARANTEE OF A SET OF OBLIGATIONS: THE 'GUARANTEE

BUS

The term 'omnibus bond' refers to the obligation assumed by a subject.

(the guarantor) in front of another subject (the creditor), with which the guarantee is provided.

compliance with all debts - including those that may arise

subsequently to the celebration of the bond: future obligations - that a third party (the
the principal debtor) will assume in the future with respect to the creditor. This formula avoids
to require a new guarantee for each new operation.

The guarantor runs the risk of ignoring, to what extent, the total debts of the
guaranteed subject. Therefore, a sector of foreign doctrine and jurisprudence
he discussed its validity with the argument of the complete indeterminacy of its object.
Díez-Picazo acknowledges that the majority doctrine accepts the validity of the guarantee.

omnibus, but introducing limitations that may arise from the principle of
good faith.
As we have seen, according to Article 1872 of the Civil Code: "can
to provide a guarantee for future obligations that are determined or determinable
whose amount is not yet known (...), but does not require specifying the amount
maximum guaranteed.

CONCLUSIONS

The surety contract is regulated in Title X, of the second section.

Named Contracts, from book VII, Sources of Obligations, of the Code
Civil of 1984 in its articles 1868 and following. As we can notice, the
the bond has been considered by the legislator as a contract, which produces
as a personal guarantee, established with the purpose of backing the
compliance with an obligation assumed by the guaranteed person. When it comes to
of a personal guarantee, this falls on the entirety of the guarantor's assets

It should be noted that one of the main characteristics of the surety contract is the
benefit of excussion, which implies that the guarantor has the right to require the
creditor who in the first instance demands payment of the debt from the debtor, in such a way

that, if he has assets with which he can cover the debt, the guarantor will not be
obliged to pay it, since the collection will be carried out - in principle - with the execution

from the assets of the main obligor. Without prejudice to the aforementioned,
It should be noted that the Civil Code states that a guarantee can be agreed upon without

excursion.

The guarantee contract requires solemnity formality according to the

set forth in Article 1871 of the same legal framework. Indeed, the guarantee
it must be in writing under penalty of nullity. This does not occur in law.
compared, since orders such as French, Italian or Spanish do not
require such formality, it being sufficient that the will of the guarantor is recorded.

express way.
 BIBLIOGRAPHY

Peruvian Civil Code

bail-comments-on-the-cassation-no-2776-2015-piura/

Notes on the guarantee in the Peruvian Civil Code,Luciano Barchi

Velaochaga

Political Constitution of Peru

 dedication
To my family for all their support and understanding
ANNEX: MODEL SURETY CONTRACT
 TABLE OF CONTENTS

INTRODUCTION
THE BOND
1. DEFINITION .........................................................................................................2
2. HISTORY
3. ACCESSORY NATURE OF THE BOND ....................................................3
4. THE FORM OF THE GUARANTEE CONTRACT....................................................3
5. SUBJECTS................................................................................................................3
5.1 OBLIGATION OF THE GUARANTOR. 4
6. LEGAL CONSEQUENCES ........................................................................4
7. IMPORTANCE OF THE EXCLUSION OF ASSETS...........................................4
8. TYPES OF SURETYS .........................................................................................5
9. OBJECT OF THE GUARANTEEA ....................................................................................5

10. REQUIREMENTS FOR EXISTENCE ......................................................................6

11. VALIDATION REQUIREMENTSZ .............................................................................6
12. THE EXTINGUISHING OF THE BAIL.....................................................................6
12.1. CAUSES FOR THE TERMINATION OF THE GUARANTEE RELATIONSHIP. 6
12.2. PAYMENT IN KIND. 7
12.2.1. PAYMENT BY THIRD PARTY. 7
12.3. THE NOVATION. 8
12.4. COMPENSATION. 8
12.5. ASSIGNMENT OF CONTRACTUAL POSITION. 8
12.6. CAUSES OF EXTINCTION OF THE 'GUARANTEE RELATIONSHIP' OF ORDER
GENERAL. 9
12.7. THE CONSOLIDATION BETWEEN THE GUARANTOR AND THE PRINCIPAL DEBTORL .. 9
12.8. THE CAUSES OF THE EXTINCTION OF THE 'GUARANTEE RELATIONSHIP' OF
SPECIAL ORDERL ........................................................................................................ 10
12.9. RELEASE OF THE GUARANTOR IN THE GUARANTEE FOR TERM
DETERMINED. 11
13. THE BOND FOR FUTURE OBLIGATION...............................................12
14. THE SURETY FOR A SET OF OBLIGATIONS: THE 'SURETY'
BUS...............................................................................................................12
CONCLUSIONS....................................................................................................13

BIBLIOGRAPHY......................................................................................................14
ANNEX: MODEL GUARANTEE CONTRACT. 16