In the event of a breach of the secured obligation, it is up to the individual case to determine what happens to the guarantee. In contract law, for example, it is customary for the creditor to use the guarantee to compensate for the damage suffered. In criminal procedure law, however, a possible escape of the accused entails the absolute loss of money, which is paid in the form of bail without having to assess costs or damages. The obligations may be ordinary and communitarian and several and their origin may be conventional, legal or judicial. A contract of guarantee is a contract in which one party, the guarantor, assumes the obligation contracted by a third party towards the creditor if the third party fails to do so. The free deposit is characterized by the fact that the guarantor requires absolutely nothing for it. Article 2811 Obligations inadvertently entered into by individuals or enterprises on behalf of certain persons shall be subject to the provisions of this Title unless they extend them in the form of a policy; that they do not publicly announce them in the press or otherwise, and that they do not employ agents to offer them. The general obligation does not require a specific form, so that the principle of freedom of form of Article 1278 of the Civil Code applies, although if it exceeds the limit of Article 1280 CC last paragraph, each party may ask the other to formalize in writing (Article 1279 of the Civil Code). According to the Civil Code, the deposit can be limited and unlimited or indefinite. The limitation will include only the principal obligation, the unlimited includes not only the principal but also all its accessories, including the costs of legal proceedings, although the second paragraph of Article 1827 CC provides in this regard «that he does not respond, except for those who have accumulated after the bail has been ordered to pay». Article 2798 Security may also be provided as security for future debts the amount of which is not yet known; However, it cannot be invoked against the guarantor as long as the debt is not liquid.
Another common use of the term «surety» in the legal field is the delivery of a sum of money as security for certain obligations. However, despite its name, the monetary obligation is not such, but it is an irregular pledge, because it is a real guarantee and not a personal guarantee. Yes, not only the principal debtor, but also his guarantor can be guaranteed. This distinction is provided for in Article 1823 of the Civil Code: «The surety may be conventional, legal or judicial». The Civil Code also stipulates that security may be civil and commercial. Civil security is regulated by the various civil codes and is generally granted free of charge. The commercial obligation is granted by an institution approved and regulated by the tax administration in a binding manner. However, we also note that the deposit can be paid free of charge, with the guarantor receiving no compensation for its granting. On the contrary, there is the onerous guarantee, under which the guarantor receives remuneration for his subsidy. The guarantee, which is an ancillary contract, expires in two ways: Article 439 of the Commercial Code specifies that it is made only if its object can guarantee the performance of a commercial contract, even if the guarantor is not a trader. In another case, the surety will be civil: in addition, in the event that a surety must be presented, the Civil Code provides in article 1854 CC that «the surety, which must be given by law or by judicial decision, must have the characteristics prescribed in article 1828», that is to say that it must present a person capable of self-binding assets and sufficient to meet the obligation it guarantees. Although article 1855 CC stipulates that «if the person required to provide security in the cases referred to in the preceding article does not find it, a pledge or mortgage deemed sufficient to cover his obligation is admitted in his place».
However, it must be said that the regulation of the Civil Code goes beyond the guarantee formed to guarantee a commercial contract, simply because the regulation of the loan by the Civil Code is practically null and void. Guarantors cannot be bound in such a way that they owe more than the principal debtor, since the contract of guarantee is ancillary and requires a principal contract; The ancillary contract may not contain more than what is contained in the main contract. On the contrary, the guarantor may be immobilized so that, for example, he owes less: if the principal debtor owes 100 baht, the guarantor may be bound to the fourth, half, three-quarters, etc. of the amount due. The conventional liaison is voluntary, born of the agreement of the parties, it is the most common. The advantage of apologies is the right that the guarantor must oppose the enforcement of the deposit until the creditor has executed all of the debtor`s assets, i.e. the creditor is required to first act against the principal debtor`s assets before bringing an action against the person who gave the bond. The court is the one awarded by the judges in the context of the procedure, for example: the range of results, the relationship between co-heirs, etc. Section 2797. The bond cannot exist without a valid obligation. Article 2794 A surety is a contract by which a person undertakes with the creditor to pay for the debtor if the debtor fails to do so.
If the payment is made by one of the guarantors, the latter has a reinstatement action against the others. This follows from article 1844 of the Civil Code, which provides: «If there are two or more guarantors of the same debtor and for the same debt, the one who paid it from them may demand from each of the others the part proportional to the satisfaction. If one of them becomes insolvent, the total share is the same. For the provision of this Article to take place, it is necessary that the payment has been made on the basis of a judicial application or that the principal debtor is bankrupt or bankrupt. In practice, this legal figure is used to guarantee any obligation that consists of the delivery of a sum of money, but any obligation can be guaranteed: to give, to do or not to do. also those of non-expendable objects. In all these cases, the guarantor`s action seeks to obtain a guarantee waiver or guarantee that protects him from the creditor`s proceedings and the risk of the debtor`s insolvency. Article 2796 Security may be provided not only for the benefit of the principal debtor, but also for the benefit of the guarantor, whether either agrees, ignores or disputes the security right in its particular case.