LSU Law: Digest of 1808

TITLE XIV – OF SURETYSHIP

CHAPTER I – OF THE NATURE AND EXTENT OF SURETYSHIP

Art. 1. The person who becomes surety on a debt, is bound to pay to the creditor said debt, either in whole or in part, in behalf of the debtor, if said debtor does not pay it himself.

Art. 2. Suretyship can only be given for the performance of valid contracts. A man may however become surety for an obligation of which the principal debtor might get a discharge by an exception merely personal to him, such as that of being a minor, or a married woman.

Art. 3. The suretyship cannot exceed what may be due by the debtor, nor be contracted under more onerous conditions. It may be contracted for a part of the debt only, or under more favorable conditions. The suretyship which exceeds the debt, or which is contracted under more onerous conditions, shall not be void, but shall be reduced to the conditions of the principal obligation.

Art. 4. Suretyship may be given not only for the principal debtor, but also for the person who has been his security.

Art. 5. Suretyship cannot be presumed, it ought to be expressed and is to be restrained within the limits intended by the contract.

Art. 6. A general and indefinite suretyship extends to all the accessories of the principal debt and even to the costs.

CHAPTER II – OF THE EFFECTS OF SURETYSHIP

SECTION I – OF THE EFFECTS OF SURETYSHIP BETWEEN THE CREDITOR AND THE SURETY

Art. 7. The obligation of the surety towards the creditor, is to pay him in case the debtor should not himself satisfy the debt; and the property of said debtor is to be previously discussed or seized, unless said security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor; in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido.

Art. 8. The creditor is not bound to discuss the principal debtor’s property, unless he should be required so to do by the security.

Art. 9. The surety who does require the discussion is bound to point out to the creditor the property of the principal debtor and furnish a sufficient sum to have said discussion carried into effect.

Art. 10. The creditor cannot be compelled to have the property of the principal debtor discussed, when said property lies out of the territory.— The same takes place with respect to any property in litigation or affected to a mortgage, which are out of the debtor’s possession.

Art. 11. The creditor who has neglected to discuss the property pointed out to him, has nevertheless the right to sue the surety, in whose power it was to prevent the insolvability of the debtor, as will be mentioned hereafter.

Art. 12. When several persons have become sureties for the same debtor and for the same debt, each of them is individually liable for the whole of said debt, in case of insolvency of any of them.
Any one of them may however demand that the creditor should divide his action by reducing his demand to the amount of the share and portion due by each surety, unless said sureties have renounced to the benefit of division.

Art. 13. A creditor can by no means claim the whole sum from the surety who applied for the division, when the other sureties have become insolvent since the time of that application. The same thing takes place if the creditor has himself voluntarily divided his actions.

SECTION II – OF THE EFFECTS OF SURETYSHIP BETWEEN THE DEBTOR AND THE SURETY

Art. 14. The surety who has paid the debt, has his remedy against the principal debtor, whether the surety has been given with or without the knowledge of the debtor.
This remedy takes place both for the principal and interest and for the costs which the surety may have been sentenced to pay; but with regard to the costs, the remedy of the security begins only from the day he has given notice to the principal debtor, that a suit was commenced against him.

Art. 15. With regard to said remedy, the security has the same right of action and the same privilege of subrogation which the law grants to joint co-debtors.

Art. 16. When there exist several principal joint debtors for the same debt, he who became a security to them all has his remedy against each of them for the whole amount of what he may have paid.

Art. 17. The surety has no remedy against the principal debtor who has paid a second time, for want of being warned by said surety of the payment made by him. But the surety may have his action against the creditor for his reimbursement.

Art. 18. A security may, even before making any payment, bring a suit against the debtor to be indemnified by him, 1^st, when there exists a lawsuit against him for the payment; 2^d, when the debtor has become a bankrupt or is in a state of insolvency; 3^d, When the debtor was bound to discharge him within a certain time; 4^th, when the debt has been due by the expiration of the term for which said debt has been contracted; 5^th, at the expiration of ten years, when the principal obligation is of a nature to last a longer time, unless the principal obligation, such as that of guardianship, be of a nature not to be extinguished before a determinate time.

SECTION III – RESPECTING THE EFFECTS OF SURETYSHIP BETWEEN THE SURETIES

Art. 19. When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against each of the other sureties, in proportion to the share of every one, but this remedy takes place only when the said person has paid in consequence of a law suit being instituted against him.

CHAPTER III – OF THE EXTINCTION OF SURETYSHIP

Art. 20. The obligation which results from a surety ship is extinguished by all the different models in which other obligations may be extinguished; but the confusion which results in case the principal debtor or his surety should become heirs one to the other, does not extinguish the action of the creditor against the person who has become the security of the security.

Art. 21. The surety may oppose to the creditor, all the exceptions belonging to the principal debtor and which are inherent to the debt; but he cannot oppose exceptions which are personal to the debtor.

Art. 22. The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.

Art. 23. The voluntary acceptance on the part of the creditor, of an immoveable or any other property in payment of the principal debt, is a full discharge of the surety, even in case the creditor should be afterwards evicted from the property so accepted.

Art. 24. The simple prorogation of the term granted by the creditor to the principal debtor, does not exonerate the surety who may, in this case, sue the said debtor, to compel him to make payment.

CHAPTER IV – OF THE LEGAL AND JUDICIAL SURETIES

Art. [2]35. Whenever a person is bound by law or by a judgement to give a surety, he is obliged to offer a person possessed of the right of contracting for himself and of sufficient property to secure the sums for which he is bound and who resides in this territory.

Art. 26. The solvability of a legal or judicial surety is calculated only by a reference to his immoveable property, except in commercial transactions, or when the debt is of an inconsiderable amount.
Immoveable property in litigation or which from being situated at a great distance, cannot easily be discussed, shall not be considered as qualifying a person to become a legal surety.

Art. 27. When the surety who has been accepted, becomes insolvent afterwards, the person who offered said surety must give another.
An exception lies against this rule when the surety has merely been given in consequence of an agreement by which the debtor bound himself to give a particular person for security.

Art. 28. The person who can give no security, is admitted to give a pledge or other satisfaction sufficient to secure the debt.

Art. 29. A judicial surety cannot demand the discussion of the property of the principal debtor.

Art. 30. The person who has become the surety of the judicial surety, cannot demand the discussion of the property of the principal debtor and of the surety.

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