Standing surety: if it is not in writing, the suretyship is void

They are Articles 1480, 1481 and 1482 of the Civil Code of 2020: who meets the conditions to be a surety, why the debtor’s incapacity does not free the surety, and why the suretyship must be in writing.

Whoever is about to commit as a surety and the creditor accepting them, under a suretyship contract governed by the Puerto Rico Civil Code. This is not criminal bail.

• Capacity to consent.Verified against the official source
• Sufficient property or solvency to satisfy the guaranteed obligation.Verified against the official source
• That the suretyship be agreed in writing: one that is not is null.Verified against the official source
• The surety cannot excuse its liability on the principal debtor’s incapacity.Verified against the official source

• The written document recording the suretyship: without writing, Article 1482 declares it null.
• The guaranteed obligation, so it can be measured whether the surety’s property or solvency satisfies it.

1. 1

   Step 1: First requirement: capacity to consent

   Article 1480: any person with capacity to consent may be a surety. It is the same requirement the Code asks to bind oneself generally.

2. 2

   Step 2: Second: sufficient property or solvency

   The same article joins it to the first: who has sufficient property or solvency to satisfy the guaranteed obligation. The measure is the obligation being guaranteed, not a fixed amount.

3. 3

   Step 3: Who checks that: the article does not say

   It does not name who must verify it, at what moment it is measured, or what happens to a suretyship signed by someone without the backing. Nor does it say what happens if the surety becomes insolvent later. This guide points at the gap and does not fill it.

4. 4

   Step 4: The debtor’s incapacity does not save you

   Article 1481, a single line: the surety cannot excuse its liability on the principal debtor’s incapacity. It is one of this chapter’s most surprising rules for someone who signs thinking that, if the debtor could not bind themselves, the suretyship falls with them.

5. 5

   Step 5: In writing, or it does not hold

   Article 1482: a suretyship not agreed in writing is null. The Code itself declares the nullity; it is not an evidentiary requirement but one of validity.

6. 6

   Step 6: Writing, yes; a public deed, it does not require

   The article asks that it be agreed in writing and stops there: it mentions no notary, public deed, form, fee or registry. This guide adds none of those requirements.

7. 7

   Step 7: Why a spoken promise is no suretyship

   This article reads together with the one opening the chapter: there the Code says no undertaking not expressly agreed as such is a suretyship, nor is a letter of recommendation assuring a person’s probity and solvency. Between the writing requirement and the express-agreement one, saying out loud "I will answer for him" creates no suretyship under this chapter.

8. 8

   Step 8: What these articles do not carry

   They do not say how much property is sufficient, do not describe how solvency is evidenced, fix no fee or concrete form, and do not say whether a surety who becomes insolvent must be replaced. None of that is here.

The suretyship is agreed between surety and creditor, in writing; the Code names no agency for this chapter and requires no registration. Disputes over the suretyship’s validity or the surety’s solvency are decided by the Court of First Instance.

• Accepting a verbal suretyship: Article 1482 declares it null if not agreed in writing.
• Believing that if the debtor was incapable the suretyship falls: Article 1481 says the opposite.
• Standing surety without sufficient property or solvency to satisfy the guaranteed obligation.
• Measuring solvency against a fixed amount: the article measures it against the obligation guaranteed.
• Accepting as surety someone without capacity to consent.
• Assuming a public deed is needed: the article asks for writing and mentions no notary.
• Confusing a letter of recommendation with a suretyship.
• Signing a vague undertaking hoping it counts as suretyship: it must be expressly agreed as such.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov