Standing surety: never more than the debtor, but costs are included

They are Articles 1472 to 1477 of the Civil Code of 2020: what suretyship is as a contract, what it is not, how far it reaches, what its limit is and which obligations may be guaranteed.

Whoever undertakes to pay or perform for another under a suretyship contract governed by the Puerto Rico Civil Code, and the creditor in whose favour it is constituted.

• The surety must expressly undertake to pay or perform for the principal debtor if the latter does not.Verified against the official source
• The suretyship includes the accessories of the principal obligation and the reasonable expenses of collecting it, including costs and fees.Verified against the official source
• The surety’s obligation may not be greater than, nor subject to more onerous stipulations than, the debtor’s; the excess reduces the suretyship, it does not void it.Verified against the official source
• If the suretyship is general, a maximum amount must be specified.Verified against the official source

• The document expressly recording the undertaking as suretyship: without that expression, Article 1473 says there is no suretyship.
• The maximum amount, if the suretyship is general: Article 1477 requires it.
• The principal obligation guaranteed, so the ceiling of Article 1475 can be measured.

1. 1

   Step 1: What it is, in one line

   Article 1472: the surety expressly undertakes to pay or perform for the principal debtor if the latter does not. Two verbs — pay or perform — and one condition: that the debtor does not.

2. 2

   Step 2: And it is not criminal bail

   Worth saying up front because the word covers two different things: this chapter regulates the civil contract of suretyship. The bail a court sets in a criminal case is another subject, with its own guide on this site.

3. 3

   Step 3: A surety may also be guaranteed

   Second paragraph of 1472: suretyship may also be constituted in favour of another surety. A suretyship over a suretyship fits in the Code.

4. 4

   Step 4: Recommending someone is not answering for them

   Article 1473: a letter of recommendation assuring a person’s probity and solvency does not constitute suretyship. Vouching that someone is honest and solvent does not make you their surety.

5. 5

   Step 5: And without saying it expressly, neither

   The same article closes: nor is any undertaking that is not expressly agreed as suretyship. Suretyship is not inferred from context or from a vague promise: it must be agreed as such.

6. 6

   Step 6: How far your cover reaches

   Article 1474: the suretyship includes the accessories of the principal obligation and the reasonable expenses of collecting it, including costs and fees. Whoever signs thinking only of the principal should read this line twice.

7. 7

   Step 7: But never more than the debtor

   Article 1475: the surety’s obligation may not be greater than, nor subject to more onerous stipulations than, the debtor’s. Two limits: neither a larger amount, nor worse conditions.

8. 8

   Step 8: And if it goes over, it is trimmed

   The same article writes the consequence: non-observance of this rule implies the reduction of the suretyship, not its nullity. An excessive suretyship does not vanish; it is cut back to the limit.

9. 9

   Step 9: Which obligations may be guaranteed

   Article 1476: present obligations, whether pure, conditional or subject to a term. All three modes fit.

10. 10

    Step 10: And future ones, with one condition

    The same article: it may also cover future obligations, but they cannot be claimed against the surety until the debt is liquid and demandable. Two requirements, and both are needed.

11. 11

    Step 11: A general suretyship carries a written cap

    Article 1477: suretyship may be general, in which case a maximum amount must be specified. The Code requires the cap but does not say what happens to a general suretyship that omits one, and this guide does not fill that in.

12. 12

    Step 12: What this guide does not cover of the chapter

    The chapter continues with the duration of the suretyship, who may be a surety, the form, the beneficio de excusión and the effects between surety and creditor, between surety and principal debtor, between co-sureties, and the extinction. None of that is in this guide.

The contract runs between surety and creditor; the Code names no agency for this chapter. Claims against the surety and the reduction Article 1475 orders belong to the Court of First Instance. Criminal bail is a different subject with its own judicial procedure.

• Signing as surety thinking only the principal is covered: the suretyship includes accessories, costs and fees.
• Believing a letter of recommendation makes you a surety: Article 1473 says it does not.
• Assuming a suretyship that was not expressly agreed as such.
• Accepting a suretyship with more onerous conditions than the debtor’s.
• Thinking an excessive suretyship is void: the Code reduces it, it does not void it.
• Claiming a future obligation against the surety before the debt is liquid and demandable.
• Signing a general suretyship without specifying the maximum amount Article 1477 requires.
• Confusing this contractual suretyship with criminal bail or with a construction payment bond.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov