Under the guarantee agreement, a person guarantees to satisfy the creditor an obligation assumed by the debtor, if he does not comply.
The bond will be given in writing, and does not admit extensive interpretation.
The bond can be stipulated, although without the consent of the debtor or against its will.
Future debts may be subject to bail; but the guarantor, in this case, will not be sued until after the principal debtor’s obligation has been made certain and net.
Not being limited, the guarantee will comprise all accessories of the principal debt, including legal expenses, from the guarantor’s citation.
The bond may be less than the principal obligation and contracted under less costly conditions, and when it exceeds the value of the debt or is more onerous than it, it will only be worth up to the limit of the obligation secured.
The null and void bonds are not subject to a bond, unless the nullity results only from the debtor’s personal incapacity.
The exception set out above does not cover the case of mutual lending.
ACCEPTANCE BY THE CREDITOR
When a person is to offer a guarantor, the creditor can not be obliged to accept it if he is not a suitable person, domiciled in the municipality where he has to provide bail, and does not possess sufficient assets to fulfill the obligation.
INSOLVENT OR INCAPABLE GUARANTEE
If the guarantor becomes insolvent or incapable, the creditor may demand that he be replaced.
PRIORITY IN PERFORMANCE
The guarantor demanded for the payment of the debt has the right to demand, until the contestation of the lida, that the assets of the debtor are first executed.
The guarantor who claims the benefit of an order must appoint property of the debtor, located in the same municipality, free and discharged, as long as sufficient to solve the debt.
Does not benefit this benefit from the guarantor:
I – if he expressly renounced it;
II – if it has been obliged as principal payer, or joint and several debtor;
III – if the debtor is insolvent, or bankrupt.
Guarantor – Asset Garnishment
Summary 549 of the STJ establishes that:
“The attachment of a family property belonging to a guarantor of a lease agreement is valid.” (REsp 1,363,368)
SOLIDARITY BETWEEN GUARDIANS
The joint guarantee given to a single debit by more than one person implies the commitment of solidarity between them, if they are declared not to reserve the benefit of division.
Once this benefit has been established, each guarantor will only be liable for the part that, in proportion, will be paid.
Each guarantor can fix in the contract the part of the debt that he takes under his responsibility, in which case it will not be for any other thanks.
The guarantor who repays the debt in full shall be subrogated to the rights of the creditor; but may only sue each of the other guarantors for their quota.
The party of the insolvent guarantor will distribute himself to others.
To be effective, the bond provided by one of the spouses must have the express written consent of the other spouse. See details in the article Bond – Nullity – Lack of Grant Uxória or Marital .
LOSSES AND DAMAGES
The debtor also responds to the guarantor for all the losses and damages he / she pays, and for those who suffer as a result of the guarantee.
The guarantor is entitled to the interest of the disbursement by the rate stipulated in the main obligation, and, if there is no agreed rate, to the legal interest of the delay.
When the creditor, without just cause, delay the execution initiated against the debtor, the guarantor can promote the progress.
The guarantor may exonerate himself from the bond that he has signed without limitation of time, whenever it suits him, being obliged by all the effects of the guarantee, during sixty days after the notification of the creditor.
The guarantor’s obligation passes to the heirs; but the responsibility for bail is limited to the time elapsed until the death of the guarantor, and can not exceed the forces of inheritance.
EXTINCTION OF BOND
The guarantor may oppose to the creditor the exceptions that are personal to him, and the extinguishers of the obligation that are the responsibility of the principal debtor, if they do not come simply from personal incapacity, except in the case of the loan made to the minor.
The guarantor, even if in solidarity, will be released:
I – if, without his consent, the creditor grants a moratorium to the debtor;
II – if, because of the creditor, it is impossible to subrogate in his rights and preferences;
III – if the creditor, in payment of the debt, accepts amicably from the object debtor other than what he was obliged to give, even if later he loses it by eviction.
If the benefit of the request is invoked and the debtor is delayed and the insolvency is suspended, the guarantor who invoked it will be exonerated if he proves that the assets indicated by him were, at the time of the attachment, sufficient to settle the debt secured.