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Responsibility for another's debt: suretyship, solidarity, and imperfect delegation.

Legal evolution is often achieved by taking a fresh look at venerable institutions whose interpretation has become thwarted thwart  
tr.v. thwart·ed, thwart·ing, thwarts
1. To prevent the occurrence, realization, or attainment of: They thwarted her plans.

, constricted con·strict  
v. con·strict·ed, con·strict·ing, con·stricts
1. To make smaller or narrower by binding or squeezing.

2. To squeeze or compress.

, or stale stale

horseman's term for the act of urination by a horse.
. Presumptions established to protect debtors and sureties at articles 1525 and 2335 of the Civil Code of Quebec have prevented jurists The following lists are of prominent jurists, including judges, listed in alphabetical order by jurisdiction. See also list of lawyers. Antiquity
  • Hammurabi
  • Solomon
  • Manu
  • Chanakya
 from borrowing freely from the rules of solidarity and suretyship SURETYSHIP, contracts. An accessory agreement by which a person binds himself for another already bound, either in whole or in part, as for his debt, default or miscarriage.
. Where one person is undoubtedly responsible for the debt of another, even in the absence of a suretyship agreement, the author argues it should be possible to apply the law of suretyship by analogy. Where two persons are each liable to perform the same obligation in full, it is likewise appropriate to apply the rules of solidarity.

The author's analysis proceeds in three parts: an introduction of the basic structure of suretyship and solidarity (Part I), a discussi0n of important differences in the law of suretyship and solidarity (Part II), and an argument that the solidarity and suretyship models should be used to illuminate il·lu·mi·nate  
v. il·lu·mi·nat·ed, il·lu·mi·nat·ing, il·lu·mi·nates
1. To provide or brighten with light.

2. To decorate or hang with lights.

 analogous analogous /anal·o·gous/ (ah-nal´ah-gus) resembling or similar in some respects, as in function or appearance, but not in origin or development.

 complex relations where multiple persons are responsible for the same debt (Part III). More specifically, in the situation of imperfect imperfect: see tense.  delegation, where a person assumes liability to a creditor for payment of a debt owed by another, but the original debtor is not discharged and remains liable in case of non-payment by the new debtor, it is appropriate to apply by analogy the law of suretyship.

L'evolution du droit [French, Justice, right, law.] A term denoting the abstract concept of law or a right.

Droit is as variable a phrase as the English right or the Latin jus. It signifies the entire body of law or a right in terms of a duty or obligation.
 est souvent rendue possible grace a l'etude attentive at·ten·tive  
1. Giving care or attention; watchful: attentive to detail.

2. Marked by or offering devoted and assiduous attention to the pleasure or comfort of others.
 de regles anciennes, qu'une interpretation trop rigide, maintes fois repetee, a fait devier de leur sens premier. Ainsi, les presomptions mises en place aux articles 1525 et 2335 du Code civil du Quebec pour proteger les debiteurs et les cautions ont empeche les juristes de puiser librement dans les regles de la solidarite et du cautionnement a titre titre

 de droit commun. Selon l'auteure, des lors qu'il est etabli qu'une personne est responsable pour la dette d'autrui, il devrait etre possible, meme en l'absence d'un contrat de cautionnement, d'appliquer par analogie le droit Le Droit (established on March 27, 1913) is a Canadian daily newspaper, published in Ottawa, Canada and is operated by Gesca since 2000. History
The newspaper was launched at that period as a tool to condemn Bill 17, an Ontario legislation that abolished education
 du cautionnement. Il devrait en etre de meme de l'application du regime juridique des obligations solidaires, lorsque deux personnes sont tenues d'executer une meme obligation dans son integralite.

L'analyse de l'auteure se deroule en trois temps: la mise en evidence de la structure de base du cautionnement et de la solidarite, l'analyse des principales differences de regime entre le cautionnement et la solidarite et, finalement, l'argument selon lequel les modeles du cautionnement et de la solidarite peuvent etre exploites afin de clarifier les relations juridiques complexes qui leur sont analogues, dans lesquelles plusieurs personnes sont responsables pour la meme dette. S'agissant enfin de la delegation imparfaite, a savoir la reprise La Reprise is a French novel in the Nouveau roman style by Alain Robbe-Grillet published in 2001 by Les Éditions de Minuit.  d'une dette sans liberation du debiteur d'origine, l'auteure demontre qu'il convient d'appliquer par analogie les regles du cautionnement aux relations juridiques entre les parties.
I.   The Basic Structure of Solidarity and Suretyship
     A. Solidarity
     B. Suretyship
     C. Solidarity and Suretyship in Contrast
II.  The Differences in the Rules Governing Solidarity
     and Suretyship
     A. Creation and Subsequent Modification of the
        Principal Obligation
     B. Payment or Voluntary Performance
     C. Responsibility in Case of Non-Payment
     D. Creoditor's Duty to Inform
III. The Extension by Analogy of the Rules Governing
     Solidarity or Suretyship
     A. Scope of Articles 1525 and 2335 of the Civil Code
        of Quebec
     B. Extension of Solidarity
     C. Extension of Suretyship
     D. Imperfect Delegation


The project for this article arose out of a previous study examining the rules of the Civil Code of Quebec (Code) respecting delegation. (1) Delegation is the operation by which a person (i.e., the new debtor) assumes liability to a creditor for the payment of a debt owed to that creditor by another person (i.e., the original debtor). (2) A typical example occurs where the purchaser of an immovable (i.e., the new debtor) promises to reimburse re·im·burse  
tr.v. re·im·bursed, re·im·burs·ing, re·im·burs·es
1. To repay (money spent); refund.

2. To pay back or compensate (another party) for money spent or losses incurred.
 the vendor's hypothecary loan to a bank, and the purchase price for the immovable is reduced accordingly. In my previous study, I presented the argument that the Quebec delegation is best understood as an assignment or transfer by the original debtor of her debt to the new debtor. (3) A delegation is either "perfect", where the original debtor is discharged by the creditor, or "imperfect", where the original debtor is not discharged and remains liable in the event that the debt is not paid by the new debtor. (4) Although the Code contemplates both perfect and imperfect delegation, its provisions are incomplete as regards to the legal relations between the creditor, original debtor, and new debtor in situations of imperfect delegation. (5)

Like several authors writing on delegation, I have mentioned in passing that the relations between parties to an imperfect delegation are not unlike those arising out of a contract of suretyship. (6) The original debtor's position with respect to the obligation owed directly to the creditor by the new debtor is indeed similar to that of a surety An individual who undertakes an obligation to pay a sum of money or to perform some duty or promise for another in the event that person fails to act.

surety n.
. (7) Alternatively, it has often been suggested that the original and new debtors are held in solidum, a characterization A rather long and fancy word for analyzing a system or process and measuring its "characteristics." For example, a Web characterization would yield the number of current sites on the Web, types of sites, annual growth, etc.  that brings into play the principal effects of solidary Sol´i`da`ry

a. 1. Having community of interests and responsibilities.
Men are solidary, or copartners; and not isolated.
- M. Arnold.
 obligations. (8)

The specific goal of this article is to compare the legal regimes attaching to suretyship and solidarity in order to determine whether one or the other may be helpful in understanding the relations that arise between parties to an imperfect delegation. More broadly, it is hoped that the analysis will also contribute to a better understanding of suretyship, solidarity, and obligations in solidum. Finally, it is suggested that solidarity and suretyship may serve as models for understanding other complex relations in which several persons are responsible for the same debt. (9)

The rules governing solidarity and suretyship are complex and technical. Their detailed analysis makes it difficult to focus on their basic structure, which is not clearly revealed in the existing literature. Moreover, the existing literature fails to explain the essential difference between solidarity and suretyship. In this article, detailed analysis will deliberately be left aside in favour of a straightforward account of both solidary obligations and suretyship. It is particularly important to grasp their basic structure, since they represent alternative models that may help in understanding other complex obligations with a similar structure, notably imperfect delegation.

The idea that one may apply by analogy either the law of suretyship or the law of solidary obligations to other complex relations immediately raises an objection. There exists in both the cases of suretyship and solidarity a legal presumption A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. A Rule of Law.

If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical
 that appears to deny their application unless they have been expressly stipulated by the parties or imposed by law. (10) The courts have already found it necessary to overcome this obstacle in order to import the rules of solidary obligations and apply them in a number of cases where the legal presumption established at article 1525 appears to prevent them from doing so. To this end, courts have resorted to the notion of an obligation in solidum. (11) Such an obligation is not identical to a solidary obligation, but it enables courts to draw on the rules of solidarity by analogy. There is not at present a well-established practice of applying the rules of suretyship to analogous situations. There is a further objection to overcome if one wishes to do so: unlike solidarity, which at least is defined by the Code as a modality modality /mo·dal·i·ty/ (mo-dal´i-te)
1. a method of application of, or the employment of, any therapeutic agent, especially a physical agent.

 applicable to obligations in general, suretyship is a nominate contract NOMINATE CONTRACT, civil law. Nominate contracts are those which have a particular name to distinguish them; as, purchase and sale, hiring, partnership, loan for use, deposit, and the like. Dig. 2, 14, 7, 1. Innominate contracts, (q.v.) are those which have no particular name. Dig. , (12) not a legal regime of general application.

Despite these objections, I will argue that suretyship and solidarity represent alternative models, both of which are valuable in explaining and regulating complex relations in which several persons are responsible for the same debt. One must apply articles 1525 and 2335 in light of their underlying objective: the protection of an alleged surety or solidary debtor. This does not preclude the application by analogy of solidarity or suretyship in appropriate circumstances, as will be shown below.

I will begin with an attempt to capture the basic structure of solidarity and suretyship (Part I), before outlining the principal differences in their legal regimes (Part II), and discussing the conditions in which the rules of solidarity or suretyship may be applied by analogy to other legal relations and, in particular, to an imperfect delegation (Part III).

I. The Basic Structure of Solidarity and Suretyship

An obligation can be solidary only if it involves more than two parties. (13) Where the obligation has two or more creditors, it involves active solidarity; (14) where it has two or more debtors, it involves passive solidarity. (15) Only passive solidarity is addressed here. For the purposes of this discussion, I will assume the presente of two co-debtors. An obligation secured by suretyship is also one where two or more persons are responsible for its non-performance: the debtor of the obligation and the surety. I will assume the presente of a single debtor and a single surety.

Simply put, the difference between solidarity and suretyship is as follows: solidary co-debtors, on one hand, are true debtors. While the creditor may obtain payment in full from one or the other of the co-debtors, (16) the debt is ultimately shared between them. (17) The surety, on the other hand, is not a debtor. She is responsible only in the event that the debtor fails to perform the obligation. (18) The surety who has performed the secured obligation or indemnified the creditor is entitled en·ti·tle  
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.

2. To furnish with a right or claim to something:
 to be reimbursed entirely by the debtor. (19) Thus, solidary co-debtors are described as being engaged toward the creditor on an equal footing, as principals (i.e., a titre principal), whereas the surety's engagement is defined as secondary, accessory accessory, in criminal law, a person who, though not present at the commission of a crime, becomes a participator in the crime either before or after the fact of commission. , or subsidiary in respect of the principal obligation of the debtor.

Certain features of the law of solidarity and suretyship challenge the aforementioned a·fore·men·tioned  
Mentioned previously.

The one or ones mentioned previously.


mentioned before

Adj. 1.
 straightforward account. First, in the case of solidarity, co-debtors do not always share equally in the debt. In particular, the final burden of the debt may rest with only one co-debtor. (20) In such circumstances it becomes unclear whether the co-debtors are in a relationship of solidarity or suretyship. Second, in the case of suretyship, the creditor is not always compelled to pursue his claim first against the debtor, before turning to the surety for payment or an indemnity, since sureties often waive To intentionally or voluntarily relinquish a known right or engage in conduct warranting an inference that a right has been surrendered.

For example, an individual is said to waive the right to bring a tort action when he or she renounces the remedy provided by law for such
 the benefit of discussion. (21) In practice, when a debtor becomes insolvent INSOLVENT. This word has several meanings. It signifies a person whose estate is not sufficient to pay his debts. Civ. Code of Louisiana, art. 1980.. A person is also said to be insolvent, who is under a present inability to answer, in the ordinary course of business, the responsibility , a creditor frequently chooses to pursue the surety directly. Once again: is this suretyship, or is it solidarity? (22) A closer analysis of solidarity (Part I.A) and suretyship (Part I.B) is required before a new attempt is made to contrast them (Part I.C).

A. Solidarity

Sources on the earliest forms of solidary obligations are scarce and fragmentary frag·men·tar·y  
Consisting of small, disconnected parts: a picture that emerges from fragmentary information.

. Their interpretation remains controversial even today. (23) In a few brief sentences, the Institutes of Justinian (Institutes) describe the form of solidarity that has passed into modern law. (24) They mention that an obligation contracted by stipulation An agreement between attorneys that concerns business before a court and is designed to simplify or shorten litigation and save costs.

During the course of a civil lawsuit, criminal proceeding, or any other type of litigation, the opposing attorneys may come to an agreement
 may have more than one debtor. For such an obligation to be formed, the co-debtors must in turn each promise the same thing. Payment by one co-debtor will discharge the debt. Finally, the Institutes specify that it is possible for one co-debtor's obligation to be unqualified, while the other's is conditional, or for one to have the benefit of a term, but not the other. (25)

A recent work by Antoine Hontebeyrie has been very helpful in shedding light on the basic structure of solidary obligations. (26) The author articulates two conflicting perspectives that arise where an obligation has more than one debtor. Hontebeyrie describes them as external and internal, for reasons that will become apparent below, but I will refer to them respectively as the "creditor's perspective" and the "co-debtors' perspective". The creditor's perspective dominates in solidary obligations, whereas the co-debtors' perspective prevails in respect of joint and divisible DIVISIBLE. The susceptibility of being divided.
     2. A contract cannot, in general, be divided in such a manner that an action may be brought, or a right accrue, on a part of it. 2 Penna. R. 454.
 obligations (i.e., where co-debtors enjoy the benefit of division). However, both perspectives are always present in respect of an obligation with multiple debtors, whether such obligation is joint and divisible, or solidary.

The creditor's perspective views the relation between the creditor and co-debtors in such a way as to escape the possible negative implications for the creditor of there being more than one debtor. (27) From the creditor's perspective there is only one debt, and so it should be possible to obtain payment from either co-debtor; in other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently
, the creditor wishes to deal with each co-debtor as if he were the only debtor. (28) Thus, in a solidary obligation, where the creditor's perspective is dominant, the creditor may sue a co-debtor for the full amount of the debt, (29) she may issue a single notice of default that will be opposable to both co-debtors, (30) prescription that is interrupted with respect to one co-debtor is interrupted with respect to the other, (31) the share of an insolvent co-debtor accrues to the other co-debtor, (32) and so forth.

From the creditor's perspective, the proportions in which co-debtors share the final burden of the debt among themselves is strictly an internal matter. For example, consider the case where spouses solidarily contract a loan to purchase an immovable. It is an internal matter between them how they will divide ownership of the immovable, and the extent to which each will contribute to repaying the loan; their respective shares and contributions may in fact vary over time. (33) From the creditor's perspective, this should not have any incidence on the external relationship between the creditor and co-debtors, in which each co-debtor is liable for the entire amount of the loan, and in which the creditor may deal with the co-debtor of his choice.

From the co-debtors' perspective, however, each co-debtor is indebted in·debt·ed  
Morally, socially, or legally obligated to another; beholden.

[Middle English endetted, from Old French endette, past participle of endetter, to oblige
 only to the extent of his share in the debt. (34) The Code provides that such shares are equal, unless the co-debtors' interests in the debt are unequal and can be established by other means. (35) From the co-debtors' point of view, each should only have to pay the amount corresponding to his share to avoid the necessity of any contributions among them; each should also be permitted to deal with the creditor as if there were several debts. According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the co-debtors' perspective, their individual interests should be protected, and it is not fair to assume that one of the co-debtors can be relied on to represent the interests of the other. Each should benefit individually from the rules of prescription when the creditor fails to exercise his rights in a timely fashion. Finally, the risk of one co-debtor becoming insolvent ought to be allocated to the creditor, not to the other co-debtor.

In a solidary obligation, the creditor's perspective prevails nearly absolutely over the co-debtors' perspective in governing the relations of the creditor to each of the co-debtors. The co-debtors' perspective comes into play only to govern the contributions to be made between themselves where une has paid more than her share of the debt. Nevertheless, some rules allow the co-debtors' perspective to generate limited effects as between the creditor and co-debtors. (36)

If the debt is not solidary and if it is divisible, a co-debtor may require that the creditor divide his claim among the co-debtors (i.e., through benefit of division). In such a case, the co-debtors' perspective prevails over the creditor's perspective. The creditor may compel Compel - COMpute ParallEL  each co-debtor to perform only his share of the debt, and he also bears the risk of a co-debtor becoming insolvent. In such a case, the obligation is said to be "joint" (conjointe). (37)

According to several authors in Quebec, the expression "joint and solidary" (conjoint con·joint  
1. Joined together; combined: "social order and prosperity, the conjoint aims of government" John K. Fairbank.

 et solidaire) is incorrect since an obligation must be either joint or solidary, but cannot be both at once. (38) One wonders, then, why the expression was so widely used until recently. (39) The answer appears straightforward if one refers to the ordinary meaning of the word "jointly" (conjointement): persons who are bound jointly are persons who are bound together, by the same obligation. (40) If the relation of joint to solidary or divisible obligations is understood properly, the expression "joint and solidary" makes perfect sense, as does the expression "joint and divisible": a joint obligation is one where several persons are obliged together, as codebtors. (41) The legal regime to be applied to such an obligation is open to a range of possibilities, due to the conflicting interests or perspectives that come into play. For the creditor's perspective to prevail, the obligation must be solidary. For the co-debtors' perspective to prevail, it must be subject to the benefit of division. A joint obligation is therefore solidary, divisible, or indivisible INDIVISIBLE. That which cannot be separated.
     2. It is important to ascertain when a consideration or a contract, is or is not indivisible. When a consideration is entire and indivisible, and it is against law, the contract is void in toto. 11 Verm. 592; 2 W.
. (42) In the last case, it is incapable of being divided, although not necessarily solidary. (43) Joint obligations have certain rules in common, whether they are solidary or subject to the benefit of division. (44) The difference between solidarity and divisibility di·vis·i·ble  
Capable of being divided, especially with no remainder: 15 is divisible by 3 and 5.

 is therefore a matter of degree, not a fundamental opposition, as is commonly supposed. (45) Still, it has to be acknowledged that under current law in Quebec, a "joint obligation" refers to an obligation that is not solidary and not indivisible, thus making it subject to the benefit of division between the co-debtors. (46) This is unfortunate, since we are now deprived of a general term for describing an obligation with more than one debtor. In this article, the expression "obligation with multiple debtors" will continue to be used.

Hontebeyrie and others have made the argument that solidarity is the "natural state" of an obligation with multiple debtors. (47) That is why Hontebeyrie describes the creditor's perspective as external and the co debtors' perspective as merely internal to the relations between them. As he indicates, the benefit of division was introduced as a favour to codebtors, in order to counter the harsh effects of solidarity. (48) Thus, in Roman law, obligations with multiple debtors were initially viewed as solidary, and the benefit of division appeared later in its development. However, it does not necessarily follow that solidarity is more "natural" than division. As I hope to have shown, relations between the creditor and codebtors can be governed equally well by the idea that each co-debtor can be treated by the creditor as if he were the only debtor (i.e., creditor's perspective) or the idea that the debt must be divided among the co-debtors (i.e., co-debtors' perspective). One solution does not appear to be inherently superior, more logical, or more natural than the other, although one is clearly to the advantage of the creditor, and the other to the co-debtors'. Moreover, the argument that solidarity is more natural than division is harmful: some codifiers in recent times have proposed to make all obligations with multiple debtors solidary, thus eliminating the benefit of division except where it is provided for in a contract or by law. (49)

Fortunately, the Code has upheld the presumption that an obligation with multiple debtors is subject to the benefit of division, unless it is contracted for the service of an enterprise or it is expressly declared to be solidary by the parties or by law. (50) However, because this rule makes it more difficult to apply solidarity in cases where a debt is not contracted for the service of an enterprise and solidarity is not provided for expressly by the parties or imposed by law, courts have resorted to the obligation in solidum where this was felt to be necessary in order to import the rules of solidarity. There is clearly a danger that the benefit of division will become eroded e·rode  
v. e·rod·ed, e·rod·ing, e·rodes
1. To wear (something) away by or as if by abrasion: Waves eroded the shore.

2. To eat into; corrode.
 by continued expansion of the obligation in solidum, whose justification and scope have not yet been properly addressed. (51) I will return to this matter in Part III, below.

To sum up, a solidary obligation is an obligation with multiple debtors in which the creditor's perspective prevails over the co-debtors' perspective. On the whole, this entitles the creditor to treat each co-debtor as if he were the only one liable for the full amount of the debt. The co-debtor who has paid the creditor may claim a contribution from his co-debtor according to the latter's share of the debt.

B. Suretyship

Suretyship is based upon the simple idea of imposing a sanction sanction, in law and ethics, any inducement to individuals or groups to follow or refrain from following a particular course of conduct. All societies impose sanctions on their members in order to encourage approved behavior.  on a person other than the debtor where the latter fails to perform an obligation or comply with a duty. (52) This is most apparent if one considers primitive forms of suretyship, or non-contractual forms such as judicial suretyship. (53) The sanctions Sanctions is the plural of sanction. Depending on context, a sanction can be either a punishment or a permission. The word is a contronym.

Sanctions involving countries:
 imposed on the surety have evolved through time, and have generally taken the same forms as those imposed on a defaulting debtor. Thus, hostage-taking is one of the earliest examples of suretyship, and it existed contemporaneously con·tem·po·ra·ne·ous  
Originating, existing, or happening during the same period of time: the contemporaneous reigns of two monarchs. See Synonyms at contemporary.
 with imprisonment Imprisonment
See also Isolation.

Alcatraz Island

former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]

Altmark, the

German prison ship in World War II. [Br. Hist.
 for debt: the surety was held prisoner by the creditor until the debtor paid his debt. In times where a debtor could be sold as a slave, so could a surety. A close analogy was drawn between suretyship and the pledge of a thing, since the creditor gained control over the surety's body as if it were a thing (i.e., plegerie). In some instances, the rules on suretyship provided that the surety was to be imprisoned im·pris·on  
tr.v. im·pris·oned, im·pris·on·ing, im·pris·ons
To put in or as if in prison; confine.

[Middle English emprisonen, from Old French emprisoner : en-
, sold, mutilated mu·ti·late  
tr.v. mu·ti·lat·ed, mu·ti·lat·ing, mu·ti·lates
1. To deprive of a limb or an essential part; cripple.

2. To disfigure by damaging irreparably: mutilate a statue.
, or even put to death instead of the debtor. In such cases, the creditor who had accepted a surety had no recourse against the debtor. If the surety died, that put an end to any possible legal action by the creditor. The sanctions to which the surety was exposed could not be exercised against his heirs.

The purpose of suretyship has always been to secure performance of an actor of an obligation. In primitive forms of suretyship, the exposure of a family member or close friend to slavery slavery, institution based on a relationship of dominance and submission, whereby one person owns another and can exact from that person labor or other services.  or imprisonment must have created a powerful psychological incentive for a debtor to pay his debt. Sometimes the surety was chosen because he was in a better position than the creditor to control or influence the debtor; obviously, it was in the surety's interest to exercise that control or influence with a view to obtaining the earliest possible payment of the debt.

The law of suretyship has evolved considerably if one compares its "modern" (54) and primitive forms, although its basic structure has remained unchanged. An important shift in the general law explains the transformation of suretyship over time. This shift pertains to the nature of legal sanctions for non-payment of a debt. The law has evolved from a system of dissuasive dis·sua·sion  
The act or an instance of dissuading.

[Middle English, from Old French, from Latin dissu
 or punitive pu·ni·tive  
Inflicting or aiming to inflict punishment; punishing.

[Medieval Latin pn
 sanctions--where the debtor or surety was imprisoned, enslaved, mutilated, put to death, or even denied a proper burial--to one of sanctions designed to satisfy the creditor's claim--where the debtor or surety's property is taken to make good on that claim. (55) The perfect surety is no longer a person close to the debtor's heart, but rather one who has sufficient property to make good on the creditor's claim in the event of default. (56) That is not to say that the threat of legal action against the surety does not continue to have a dissuasive effect upon the debtor, nor that the psychological effects of the more primitive forms of suretyship do not continue to exist today. (57)

Modern suretyship provides a new and direct means by which the creditor may obtain satisfaction for his claim. Whereas primitive suretyship secured payment only indirectly by exerting pressure on the debtor, modern suretyship allows the creditor to seize the surety's property in order to obtain the value of his claim. There is nothing to prevent the creditor from exercising his rights directly against the surety upon default of the debtor, just as he would have been entitled to punish pun·ish  
v. pun·ished, pun·ish·ing, pun·ish·es
1. To subject to a penalty for an offense, sin, or fault.

2. To inflict a penalty for (an offense).

 him immediately under the primitive model. However, in the primitive model, punishing pun·ish  
v. pun·ished, pun·ish·ing, pun·ish·es
1. To subject to a penalty for an offense, sin, or fault.

2. To inflict a penalty for (an offense).

 the surety did not provide satisfaction for the creditor's claim; if anything, the creditor only incurred additional expense, since he had to pay for the room and board of the surety, if imprisoned. (58) In modern law, seizure Forcible possession; a grasping, snatching, or putting in possession.

In Criminal Law, a seizure is the forcible taking of property by a government law enforcement official from a person who is suspected of violating, or is known to have violated, the law.
 of the surety's property allows the creditor to satisfy his claim irrespective of irrespective of
Without consideration of; regardless of.

irrespective of
preposition despite 
 the debtor's ability or willingness to pay Willingness to pay (WTP) generally refers to the value of a good to a person as what they are willing to pay, sacrifice or exchange for it. See also
  • Becker-DeGroot-Marschak method
. Thus, it has become more expedient ex·pe·di·ent  
1. Appropriate to a purpose.

a. Serving to promote one's interest: was merciful only when mercy was expedient.

 in many cases for the creditor to pursue his claim directly against the surety, without taking recourse against the debtor at all. This development has drawn suretyship closer to solidarity. (59)

The same development also provoked pro·voke  
tr.v. pro·voked, pro·vok·ing, pro·vokes
1. To incite to anger or resentment.

2. To stir to action or feeling.

3. To give rise to; evoke: provoke laughter.
 a reaction from commentators, however, and various mechanisms and doctrines were devised in order to ensure that the surety would be pursued only after it was shown that recourse against the debtor would not provide satisfaction. In other words, the subsidiary character of suretyship was being asserted, and this influenced the development of the law. In Roman law, it was considered to be an offence for a creditor to pursue a surety if the debtor was capable of paying his debt. (60) The benefit of discussion--requiring that a creditor first attempt to make good on his claim against the debtor's property before pursuing the surety (61)--was introduced later into Roman law, as it was into French law during the thirteenth century. (62) Many believe this measure to be ineffective, because the surety may validly renounce TO RENOUNCE. To give up a right; for example, an executor may renounce the right of administering the estate of the testator; a widow the right to administer to her intestate husband's estate.
 the benefit of discussion in the suretyship agreement, which is nearly always done. (63) Moreover, exercise of the benefit of discussion is onerous on·er·ous  
1. Troublesome or oppressive; burdensome. See Synonyms at burdensome.

2. Law Entailing obligations that exceed advantages.
 for the surety. (64) Nevertheless, the benefit of discussion gives expression to the important notion that a creditor ought not to pursue a surety unless recourse against the debtor .is ineffective. This is especially true where the surety was not remunerated re·mu·ner·ate  
tr.v. re·mu·ner·at·ed, re·mu·ner·at·ing, re·mu·ner·ates
1. To pay (a person) a suitable equivalent in return for goods provided, services rendered, or losses incurred; recompense.

 and where she has not benefited from the debtor's activities. (65)

The accessory character of suretyship has also been imposed consistently throughout the ages. The surety's responsibility is accessory in the sense that its existence depends on the validity and continued existence of the principal obligation; its scope is likewise determined by the scope of the principal obligation. (66) Therefore, the surety is discharged in case of nullity nullity n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment.

, payment, or prescription of the principal obligation, just as he may invoke To activate a program, routine, function or process.  the debtor's defences to reduce or repel re·pel  
v. re·pelled, re·pel·ling, re·pels
1. To ward off or keep away; drive back: repel insects.

 the creditor's claim. (67) The accessory character of suretyship is one of its fundamental attributes in the French legal tradition. An independent guarantee is not and cannot be a suretyship. (68)

The evolution of suretyship has made it increasingly difficult to set' it apart from solidarity. Yet, as will be seen in Part II, below, there remain some important differences between them. Such differences relate to the idea, stated at the outset, that the surety is not a debtor. What, then, is the nature of the surety's relation to the debt?

Two interpretations have been provided--one in the civil law tradition, the other in the common law tradition--that help us understand the nature of the surety's responsibility for a debt that is not his own. In the civil law tradition, the dualist conception of obligations was developed by German scholars and has obtained a certain degree of acceptance in French law. (69) According to the dualist conception, the obligation has two aspects: the debt (Schuld), and responsibility for the debt (Haftung). (70) The debt describes what the debtor must do and that to which the creditor is entitled. In most instances, the debt is voluntarily performed to the creditor's satisfaction. If so, responsibility for the debt is not called into play. By responsibility for the debt, it is meant that a person or thing is answerable an·swer·a·ble  
1. Subject to being called to answer; accountable. See Synonyms at responsible.

2. That can be answered or refuted: an answerable charge.

 in case of non-performance. A recourse or sanction may then be exercised against that person or thing. For example, the person who is responsible may be ordered to perform the obligation in kind or to pay damages representing the value of performance. (71) If necessary, her property will be seized to satisfy the creditor's claim. (72) In modern law, the sanction is, in most instances, modelled on the debt itself; it is intended to satisfy the creditor's claim, but no more. (73) Thus, it is not always easy to identify debt and responsibility as two distinct aspects of an obligation.

First developed by Brinz as a theoretical construct, (74) the dualist conception was applied to old Germanic law and to Roman law and was found by legal historians to provide a useful framework for analyzing a number of situations where there appeared to exist separate processes for creating debt and responsibility. (75) The dualist conception has also been invoked to explain modern institutions, in particular the natural obligation (i.e., debt without responsibility) and suretyship (i.e., responsibility for another's debt), As many authors have noted, the surety is not a debtor, but is responsible--or answerable--if the debtor fails to perform the secured obligation. (76)

In the common law tradition, an analogous distinction is made between primary and secondary obligations. (77) A secondary obligation (e.g., the obligation to pay damages) arises when there is breach of a primary obligation (e.g., a contractual term A contractual term is "[a]ny provision forming part of a contract"[1] Each term gives rise to a contractual obligation, breach of which will can give rise to litigation. ). Suretyship is commonly analyzed an·a·lyze  
tr.v. an·a·lyzed, an·a·lyz·ing, an·a·lyz·es
1. To examine methodically by separating into parts and studying their interrelations.

2. Chemistry To make a chemical analysis of.

 as imposing a secondary obligation on the surety to pay damages where the debtor breaches his primary obligation, being the secured, principal obligation. The surety is not a party to the principal obligation; however, if and when the debtor defaults, the surety becomes liable by virtue of the secondary obligation to pay damages. This distinction between primary and secondary obligations is different from the dualist conception, although they are perhaps not as far apart as may seem at first. Indeed, proponents of the dualist conception do not view responsibility for nonpayment of the debt as an "obligation". It is the primary obligation itself that is composed of two aspects that may, in certain circumstances, become dissociated dis·so·ci·ate  
v. dis·so·ci·at·ed, dis·so·ci·at·ing, dis·so·ci·ates
1. To remove from association; separate:
. It is not necessary to discuss further the relative merits or implications of these alternative interpretations of suretyship. It is sufficient to note that both recognize and give expression to the fundamental idea that the surety is not a party to the principal obligation she has undertaken to secure. (78)

C. Solidarity and Suretyship in Contrast

I have shown that a solidary obligation has multiple debtors who share the debt, while a surety is responsible for a debt that is not his own. Despite this distinction, some authors have brought the two notions together. First, one might be tempted to argue that the surety is in effect solidarily liable for the debt, especially if he has agreed to be bound solidarily by renouncing the benefit of discussion. (79) If the surety may be treated by the creditor in the same way as a co-debtor, the argument might go, then there really is no difference between suretyship and a solidary obligation in which one co-debtor has no interest in the debt. This view is sometimes entertained in the literature but is ultimately rejected. First, the surety, in contrast to a co-debtor, may invoke all the defences available to the principal debtor. Second, the surety, in contrast to a co-debtor, is also not a party to the principal obligation. (80) These differences and others will be discussed in Part II, below.

Some authors have brought together suretyship and solidarity in a different way, by suggesting that solidary debtors are indebted to the extent of their share in the debt but act as sureties for one another in respect of the balance (i.e., theorie du cautionnement mutuel). (81) It is indeed possible to defend this point of view by applying the dualist conception to solidary obligations in the following way: the debt of each co-debtor is limited to his individual share, but each remains responsible for the whole. (82)

Solidarity, in contrast to suretyship, need not involve a dissociation dissociation, in chemistry, separation of a substance into atoms or ions. Thermal dissociation occurs at high temperatures. For example, hydrogen molecules (H2  of debt and responsibility. (83) The description of solidarity in terms of the conflicting perspectives of the creditor and co-debtors successfully accounts for the paradox that underlies solidary obligations--that each co-debtor is simultaneously debtor for the whole and debtor for his share of the debt.

It also sets solidary obligations clearly apart from suretyship. As I have indicated, the creditor of a solidary obligation may treat each co-debtor as though he were the sole debtor and the only one responsible for the full amount of the debt (i.e., the creditor's perspective). The co-debtors, as among themselves, share both in the debt and responsibility for the debt (i.e., the co-debtors' perspective). Still, in the final analysis the most important reason for upholding the distinction between solidarity and suretyship is that there exist significant differences in the rules by which they are governed.

II. The Differences in the Rules Governing Solidarity and Suretyship

Suretyship and solidarity have many points in common. Their historical development has allowed them to converge con·verge  
v. con·verged, con·verg·ing, con·verg·es

a. To tend toward or approach an intersecting point: lines that converge.

: they frequently fulfill ful·fill also ful·fil  
tr.v. ful·filled, ful·fill·ing, ful·fills also ful·fils
1. To bring into actuality; effect: fulfilled their promises.

 similar functions, and rules and remedies have from time to time been transposed trans·pose  
v. trans·posed, trans·pos·ing, trans·pos·es
1. To reverse or transfer the order or place of; interchange.

 from one to the other. Indeed, the laws of both solidarity and suretyship involve striking a balance between the conflicting interests of the creditor on one hand (for whom suretyship or solidarity provides security for payment of the debt), and the surety or co-debtors on the other hand (who run the risk of having to satisfy a debt which is not their own or not entirely their own). The creditor is entitled to pursue his claim for the entire amount of the debt against either a co-debtor or the surety. The co-debtor or surety who has paid the debt has the right to be reimbursed by the principal debtor or the other co-debtor to the extent of his share. It is therefore not surprising to find a number of elements common to both suretyship and solidarity, such as the complex set of rules regarding subrogation The substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he or she who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or Securities. .

My purpose here is not to provide a complete overview of the law of suretyship and solidarity, nor to examine areas of convergence in their legal regimes, but only to outline the most significant differences between them. I hope to show that these can be accounted for and understood by referring to the idea that the surety, unlike a co-debtor, is not a party to the secured obligation, but is responsible only in case of non-payment.

I will now address, in turn, the rules that concern the creation and subsequent modification of the principal obligation (Part II.A), its pay-mentor voluntary performance (Part II.B), the extent of the co-debtors' or surety's responsibility in case of non-payment (Part II.C), and the creditor's duty to inform (Part II.D).

A. Creation and Subsequent Modification of the Principal Obligation

A contractual obligation is formed by the parties consenting to it. (84) It has effect only between those parties, except in special cases provided by law. (85) It will be shown that while the co-debtors are parties to the principal obligation, the surety is not.

There can be no doubt that co-debtors must both be party to the contract by which their obligation is formed; (86) they must likewise take part in any new agreement purporting to modify the terms of their initial obligation. (87) Thus, if a co-debtor is not involved in the renewal of a hypothecary loan, the new terms See suggestions for new terms.  to which the other parties have consented are not opposable to the co-debtor who was excluded from the agreement. The same holds true where the credit limit on a credit card is increased without a co-debtor's consent, (88) or when a lease is modified with the approval of only one lessee One who rents real property or Personal Property from another.

A lessee of land is a tenant. Cross-references

Landlord and Tenant.

lessee n. the person renting property under a written lease from the owner (lessor).
. (89) Any exceptions to this principle must be justified on special grounds, such as the presence of a mandate given by the excluded co-debtor to a person taking part in the agreement, (90) or the existence in the agreement of a stipulation for another, the benefit of which is accepted by the excluded co-debtor. (91) It is always possible for a new debtor to be joined with the consent of all parties concerned to an existing contract or obligation, in which case he becomes a party to it. (92)

A surety need not be party to the contract in which the principal obligation is created; nor to any subsequent modification of it. (93) A surety may in fact undertake to secure an obligation not yet in existence. (94) It cannot be argued that the principal debtor acts as the surety's mandatary, so as to make the surety a party to the principal obligation. (95) Further evidence that the surety is not a party to the principal obligation is found in the fact that his responsibility may be limited in time or that he may have the ability to terminate the suretyship. (96) Bringing the surety's responsibility to an end has no incidence on the existence and scope of the principal obligation or on the extent of the principal debtor's liability.

B. Payment or Voluntary Performance

It has just been shown that the surety is not a party to the secured obligation. In Part I above, the argument was presented that in the civil law the surety is responsible for the debt, although the debt is not his own. (97) If this view is correct, it follows that the surety is not expected to perform the secured obligation voluntarily, whereas the debtor and co-debtors are expected to do so. The surety becomes responsible only in the event that the debtor fails to perform the principal obligation (see below). Is this view attested at·test  
v. at·test·ed, at·test·ing, at·tests
1. To affirm to be correct, true, or genuine: The date of the painting was attested by the appraiser.

 by the positive law?

The Code states that the surety "binds himself towards the creditor ... to perform the obligation of the debtor if he fails to fulfill it." (98) More precisely, the French Code civil states that the surety undertakes to satisfy the creditor's claim if the debtor does not do so. (99) The French definition underscores the surety's responsibility for the debt, whereas the Quebec definition appears to consider the surety's undertaking as one to perform the obligation itself. Still, the Quebec definition makes clear that the surety's responsibility arises only if the debtor fails to fulfill his obligation, and that the surety's assumption of responsibility attaches to the obligation of the debtor, not his own.

My position is that the statement according to which the surety undertakes to Perform the debtor's obligation must be understood as a shorthand for the following, more complex propositions. The surety is responsible for the debtor's obligation such that all or some of the personal recourses normally available against a defaulting debtor may be exercised against the surety--and in particular, in the case of a monetary obligation, a judgment ordering the surety to pay the debt (see below). The surety may elect to pay the debtor's obligation voluntarily in order to avoid legal proceedings All actions that are authorized or sanctioned by law and instituted in a court or a tribunal for the acquisition of rights or the enforcement of remedies.  being taken against herself. Where the surety pays the debt voluntarily before a judgment is issued in such a proceeding, the surety is still paying the debtor's obligation, not his own. (100) Significantly, the surety may also take action against the debtor to compel payment of the debt (101)--a recourse not available among co-debtors of a solidary obligation, although this particular rule likely extends to a co-debtor with no interest in the debt by virtue of article 1537. (102) Unlike the surety, a co-debtor pays a debt that is her own, even when she pays an amount exceeding her share in the debt.

Accordingly, the debtor of the principal obligation must be in default before the creditor may pursue the surety. (103) In the case of a solidary obligation, it is not necessary for both co-debtors to be in default before one of them may be pursued for the full amount of the debt. In fact, putting one co-debtor in default has equal effect with respect to the other co-debtor. (104)

A surety may set up against the creditor all the defences of the principal debtor, with the exception of bankruptcy. (105) By contrast, a co-debtor may set up only defences that are common to both co-debtors: she may not set up defences personal to her co-debtor, even to the extent of the latter's share in the debt, with the exception of compensation, confusion, and release. (106)

It follows that a creditor cannot invoke the rules of compensation against the surety in such a way as to apply amounts owing to owing to
Because of; on account of: I couldn't attend, owing to illness.

owing to prepdebido a, por causa de 
 the surety by the creditor--such as funds held by the surety in an account with the creditor in payment of the principal obligation. (107) By contrast, there is nothing to prevent a creditor from taking an amount owing to him by a co-debtor in full payment of a solidary obligation. (108)

C. Responsibility in Case of Non-Payment

The surety's undertaking is to satisfy the creditor's claim, should the debtor fail to perform his obligation. A variety of remedies are available against a defaulting debtor. The surety may also be subject to these remedies, to the extent provided in the suretyship agreement or permitted by law. For example, a surety may conceivably con·ceive  
v. con·ceived, con·ceiv·ing, con·ceives
1. To become pregnant with (offspring).

 be responsible for specific performance, damages, or payment of a penalty should the debtor default. In practice though, the surety's responsibility nearly always takes the form of damages, while the surety is also at liberty to perform the debtor's obligation in kind where possible. (109) For example, where a financial institution has guaranteed the timely and correct performance of a contract of enterprise, it may elect to hire a new contractor to remedy the debtor's default in kind, but it is not required to do so. The actual responsibility undertaken by the surety in such a case is to indemnify To compensate for loss or damage; to provide security for financial reimbursement to an individual in case of a specified loss incurred by the person.

Insurance companies indemnify their policyholders against damage caused by such things as fire, theft, and flooding, which
 the creditor by way of damages. (110)

As is well known, it is possible for the surety to limit his responsibility to a certain amount, or in such a way that the creditor will be entitled to satisfy his claim only against a specific item of the surety's property. (111) In the latter case, the creditor is well-advised to obtain a hypothec Hy`poth´ec

n. 1. (Scot. Law) A landlord's right, independently of stipulation, over the stocking (cattle, implements, etc.), and crops of his tenant, as security for payment of rent.
 against such property (e.g., real suretyship or cautionnement reel).

Before a creditor may proceed to the seizure of the surety's property in satisfaction of his claim, a judgment must be entered against the surety for a certain amount. (112) The judgment debt is a debt different in nature from the principal obligation. Only by virtue of a judgment does the surety truly become a debtor. The creditor may henceforth From this time forward.

The term henceforth, when used in a legal document, statute, or other legal instrument, indicates that something will commence from the present time to the future, to the exclusion of the past.
 invoke compensation as between the judgment debt and an amount owing to the surety (e.g., funds in the surety's account with the creditor). The surety is expected to pay the judgment debt and is subject to seizure of his property in satisfaction of the creditor's claim. (113)

Several rules illustrate how the principal debtor's liability and the surety's responsibility for the debt do not operate on the same level. Although the surety's responsibility is frequently limited to a certain amount, the debtor and surety never share in the debt, contrary to the co-debtors in a solidary obligation. In cases where a solidary obligation is also secured by a suretyship, the surety who has paid may pursue either co-debtor for the full amount of the debt. (114) The rule is of course different where a co-debtor has paid the debt: he may pursue each of his co-debtors only for their individual shares. (115)

D. Creditor's Duty to Inform

Quebec law Quebec law is unique in Canada because Quebec is the only province in Canada to have a civil law system. The Canadian Constitution provides with article 92(13)that the Provinces have exclusive rights over "property and civil rights", whereby civil law includes most aspects of  has seen considerable development in recent years of a creditor's duty to inform, which may arise either during negotiations leading up to the conclusion of a contract, or during the contract's performance. (116) Significantly, such a duty has frequently been imposed by the courts on creditors in the context of suretyship, but rarely, if ever, has it been found to exist in cases of solidarity. The Code itself expressly imposes on the creditor a duty to inform at articles 2345 and 2355, (117) whereas no such duty is prescribed pre·scribe  
v. pre·scribed, pre·scrib·ing, pre·scribes
1. To set down as a rule or guide; enjoin. See Synonyms at dictate.

2. To order the use of (a medicine or other treatment).
 in the provisions on solidarity.

The reason for imposing a duty to inform in the context of suretyship is that the surety, not being a party to the principal obligation, typically does not have any direct means of control over its evolution. Nor does the surety have ready access to information concerning the secured obligation. The surety cannot prevent a modification of the obligation, even when exposed to greater responsibility by an increase in the principal debtor's credit limit, an extension of the terra See tera.  for repayment, or an increase in the interest rate. (118) Moreover, such a modification might easily take place without the surety's knowledge. (119) The surety frequently does not know the terms of the principal obligation or the conditions for its renewal or modification, nor whether the debt is in good standing. Yet such information may be of crucial importance to the surety, not only when he initially agrees to secure the debtor's obligation(s), but also thereafter, since the surety may have the means to influence the debtor, to demand that the debtor pay the debt, (120) or to terminate the suretyship altogether. (121) Except in cases where the surety does in fact have access to the relevant information, (122) the courts have readily imposed on the creditor a duty to inform. (123) Where the creditor is found to have violated vi·o·late  
tr.v. vi·o·lat·ed, vi·o·lat·ing, vi·o·lates
1. To break or disregard (a law or promise, for example).

2. To assault (a person) sexually.

 his duty to inform at the time of contracting, the surety may have the suretyship annulled on grounds of error. Where the duty to inform is violated after the contract's formation, the surety may invoke a fin de non-recevoir, through which the creditor's recourse is declared by the court to be inadmissible That which, according to established legal principles, cannot be received into evidence at a trial for consideration by the jury or judge in reaching a determination of the action. . (124)

The creditor's duty to inform has not taken hold in the law of solidary obligations, which is unsurprising, since both co-debtors are party to the debt and to any modification of its terms, failing which a modification is inopposable to the absent co-debtor. In suretyship, the existence of a duty to inform compensates for the surety's lack of knowledge and control. In solidarity, both co-debtors as parties to the obligation normally have such knowledge and control. (125) Of course, that is not to say that a duty to inform could not arise in the context of a solidary obligation if special circumstances special circumstances n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which state statutes allow or require imposition of a more severe punishment.  were present. The existence of a duty to inform always depends on the facts of each case. (126)

To conclude, suretyship and solidarity represent different manners in which two or more persons may share responsibility for the same debt. In the case of solidarity, the co-debtors are both parties to the obligation, either of them is expected to perform the debt voluntarily, and either may be held responsible in case of non-performance. As for the surety, he is not a party to the secured obligation, he is not expected to perform it voluntarily, but he is responsible in case the debtor defaults. To ensure protection of the surety's interests, the creditor is required, as a rule, to inform the surety of any important changes affecting the principal obligation(s), including a deterioration de·te·ri·o·ra·tion
The process or condition of becoming worse.
 of the debtor's ability to meet his obligations. The question that remains to be addressed is whether solidarity or suretyship may be applied by analogy to resolve issues arising in the context of other complex relations, particularly in the case of imperfect delegation.

III. The Extension by Analogy of the Rules Governing Solidarity or Suretyship

This section considers whether the alternative models represented by solidarity and suretyship might be used to explain similar complex relations, even where such legal relations have come into being other than by a creditor contracting with multiple debtors or a surety undertaking to guarantee the payment of another's debt. As mentioned at the outset, article 1525, in the case of solidarity, and article 2335, in the case of suretyship, appear to preclude this possibility. However, that view does not hold, as I demonstrate by discussing the meaning and scope of both articles (Part III.A), before noting that solidarity has been extended to analogous situations either by law or by the courts making use of the obligation in solidum (Part III.B), while a similar extension of the rules governing suretyship is also possible, although it has generally been approached with caution (Part III.C). Finally, I will explain why it is appropriate to apply by analogy the rules governing suretyship to imperfect delegation (Part III.D).

A. Scope of Articles 1525 and 2335 of the Civil Code of Quebec

Article 1525 is found in the section of the Code concerning obligations with multiple debtors. It should be recalled that an obligation is "joint between two or more debtors where they are obligated to the creditor for the same thing but in such a way that each debtor may only be compelled to perform the obligation separately and only up to his share of the debt." (127) An obligation is "solidary between the debtors where they are obligated to the creditor for the same thing in such a way that each of them may be compelled separately to perform the whole obligation and where performance by a single debtor releases the others towards the creditor.' (128) Article 1525 then states that "[s]olidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or imposed by law."

The purpose of article 1525 is to protect co-debtors by establishing in their favour a presumption that they are jointly liable for their common debt. To overcome the presumption, it must be stipulated expressly by the parties or provided by law that the obligation is solidary. Article 1525 also contains a reverse presumption in cases where the obligation is contracted for the service of an enterprise. In such a case, the obligation is solidary unless the parties have provided that it is joint. One reason for reversing the presumption is that the creditor in such a case is likely to be in greater need of protection than the co-debtors.

Article 2335 appears in the chapter of the Code devoted to suretyship. It states that "[s]uretyship is not presumed; it is effected only if it is express." Suretyship is well known to be a dangerous contract for the surety. The purpose of article 2335 is to ensure that no suretyship will be found to exist unless the surety's consent to such a contract has been given in express terms. Indeed, it often happens that the intention to guarantee the debt of another cannot be made out clearly. In some cases, a person may have intended only to give assurances that the debtor is trustworthy, which must not be construed as a guarantee. (129) In other cases, it may be uncertain whether a person has signed an agreement in her personal capacity as surety, or only as a witness or representative of the principal debtor. (130) For example, it often happens that a clause is inserted in a loan or credit agreement to the effect that the undersigned un·der·signed  
1. Having signatures or a signature at the bottom or end. Used of documents.

2. Signed or having signed at the bottom or end of a document:
, while signing the agreement on behalf of the debtor company, also agrees in his personal capacity to guarantee the debtor's obligations. (131) In such instances, article 2335 plays an important protective role: a suretyship will not be found to exist unless the defendant's intention to act as a surety has been clearly expressed. (132)

The function of articles 1525 and 2335 is to resolve a situation where the parties' intention to create a solidary obligation or a suretyship is ambiguous by giving co-debtors or the alleged surety the benefit of the doubt. In a contract that creates an obligation with multiple debtors, the obligation is presumed to be joint if it is not for the service of an enterprise. In an agreement where a party's intention to guarantee the obligations of another is uncertain, a suretyship is presumed not to exist. But where it can be established without doubt that two persons are each liable to perform the same obligation in full, it may be appropriate to apply the rules of solidarity by analogy, even though no express stipulation can be found to that effect. Where one person is undoubtedly responsible for the debt of another independently of the existence of any suretyship agreement, it may likewise be appropriate to apply by analogy the law of suretyship.

B. Extension of Solidarity

I have thus far considered only the cases where several debtors contract an obligation together. In such cases, one must determine whether the debt is joint or solidary. As we have just seen, article 1525 contains the rules that must be used to answer that question.

It is now necessary to consider the development of solidarity outside the realm of contracts, particularly in the field of civil responsibility, and in the case of joint wrongdoers. This development has followed a different course and raised a different set of legal issues. Conceptually, the situation initially presents itself as follows. Suppose that X and Y have each committed a fault resulting in a loss suffered by Z. Assume further that Z is able to establish independently a claim against either X or Y, each of which would allow her to be compensated fully for her loss. It is clear that Z cannot obtain full compensation from both X and Y. If Z obtains full compensation from X, then she will not succeed in an action against Y, since there will no longer be any loss to compensate. (133) Moreover, unless there exists a contractual relationship between X and Y (e.g., a mandate or insurance agreement), X initially does not appear to have an action to recover from Y any part of the amount paid to Z. The matter might simply have been left at that, with the plaintiff having the choice to pursue any or all of the persons responsible for her loss until fully compensated. A defendant in this scenario could not require others also liable for the plaintiffs loss to share the debt, except in the presence of separate rules to that effect governing the relations between defendants.

Instead, it was determined--sometimes by statute, sometimes by case law--that applying the principal effects of solidarity would provide a more efficient and just result in such cases. (134) Accordingly, a plaintiff may still claim from any one defendant the full amount of a loss, but the defendant may now demand that all parties responsible for the loss share in the ultimate burden of compensating the plaintiff. The plaintiffs rights are undiminished, except insofar in·so·far  
To such an extent.

Adv. 1. insofar - to the degree or extent that; "insofar as it can be ascertained, the horse lung is comparable to that of man"; "so far as it is reasonably practical he should practice
 as control of the allocation of the damages among the defendants is lost. Applying the rules of solidarity ensures that all parties liable for the plaintiffs loss share in the debt, a solution that has been found preferable with a view to securing the dissuasive objectives of civil responsibility and equitable treatment of the defendants. (135) The legal means by which this result has been achieved have varied. In some cases, the defendants' liability was defined by law as solidary; in others, the defendants were determined by the courts to be liable in solidum--a characterization found to bring into play the principal effects of solidarity. (136)

In other situations as well, courts have decided that rules governing solidarity should apply. It is not necessary to examine those circumstances here, although one instance imperfect delegation--will be addressed below. It is sufficient to note that solidarity has frequently been extended by analogy to new situations. (137) The courts have generally reached this result by declaring the parties to be liable in solidum. (138)

Until the nature and scope of the obligation in solidum are better known, there is a danger that the benefit of division will be lost in some cases where it ought to apply. In particular, courts must resist any temptation to apply the obligation in solidum to cases where an obligation is contracted in common by multiple debtors, not for the service of an enterprise, and without any express stipulation in the contract that the debt is solidary. (139)

C. Extension of Suretyship

While they have been relatively bold in extending by analogy the rules of solidarity to novel situations, jurists in France and Quebec have been very cautious in applying the rules of suretyship to instances where the relations between parties are similar to those between a debtor, creditor, and surety. (140) Yet article 2335 of the Code does not stand in the way of such an analysis, since the purpose of that article is to prevent a court from implying the existence of a contract of suretyship in cases where no clear intention to conclude such a contract exists. If, however, responsibility for another's debt does exist independently of any contract, then there appears to be no reason why one could not draw on the rules of suretyship to the extent that they are consonant consonant

Any speech sound characterized by an articulation in which a closure or narrowing of the vocal tract completely or partially blocks the flow of air; also, any letter or symbol representing such a sound.
 with the nature of the relations being examined. It should be noted that the rules of suretyship are likely to be invoked by the person responsible for the debt (who is in a position analogous to that of a surety) because they provide effective rights and remedies against the creditor and debtor of the obligation. It must be remembered that article 2335 is designed to protect the alleged surety, not the creditor or the debtor of the obligation. This provision should not be used to bar the application of rules and remedies that benefit the party whom it is intended to protect.

Where a person is responsible for the debt of another, although he is not himself a debtor, suretyship provides a valuable model for defining the relations between the parties, which present the same basic structure as suretyship. Solutions have been developed over time, in the context of suretyship, to respond to the legitimate needs and interests of the creditor, debtor, and person responsible for the debt. Many of the rules and mechanisms of suretyship were designed specifically to resolve difficulties inherent in such relations. It is therefore relevant to refer to suretyship where no other or better rules are available. This approach is frequently used in the law of obligations and in private law generally, and it is an important feature of civil law methodology.

In cases involving complex obligations, it will often be necessary to choose between applying by analogy the law of suretyship or the law of solidarity. One will then ask whether persons responsible for the debt are all true debtors, in which case solidarity should be referred to by analogy, (141) or whether one person is merely responsible for the other's debt, in which case suretyship is the appropriate reference. Where the debt is ultimately to be shared among the debtors, the facts clearly point to solidarity. Where only one debtor has an interest in the debt, the solution is more difficult, because this factor does not exclude the possibility (nor does it imply) that the relations between the parties are analogous to suretyship. (142) As we have seen, a solidary obligation in which one co-debtor has no interest in the debt is distinct from suretyship, in particular because both co-debtors must take part in any modification of the debt, and either co-debtor is expected to pay the debt. The surety is not expected to pay until the debtor is in default and the surety's responsibility has been converted into a debt by judgment (although he may elect to pay the debt before then, if only to avoid proceedings being taken against him). (143)

In D.I.M.S. Construction, the Supreme Court of Canada The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system.[1]  briefly considered applying the law of either solidarity or suretyship to an obligation with multiple debtors created by statute. (144) Section 316 of the Act Respecting Industrial Accidents and Occupational Diseases (145) provided that the Commission de la sante et de la securite du travail TRAVAIL. The act of child-bearing.
     2. A woman is said to be in her travail from the time the pains of child-bearing commence until her delivery. 5 Pick. 63; 6 Greenl. R. 460.
 could claim from an employer the amounts payable to the commission by a contractor, in cases where the employer had retained the contractor's services. (146) The section further provided that the employer had a right to be reimbursed by the contractor, after having paid the commission. The court analyzed the relations between the parties as follows:
   In the case at bar, solidarity is not mentioned in s. 316 AIAOD and
   cannot be presumed. Nor can the employer's obligation be
   characterized as being in solidum with the contractor, since the
   instant case does not involve two concurrent debts having the same
   object. The contractor must first be obliged to pay. It might be
   thought that this is a legal suretyship under art. 2334 C.C.Q., but
   the suretyship referred to in that article is one that a debtor
   must furnish when obliged to do so by the legislature. In the case
   of s. 316 AIAOD, the obligation is imposed directly on the
   warrantor, not on the debtor. This cannot be a true case of
   suretyship, since a warrantor under the AIAOD has no choice in
   taking on the obligation, whereas consent is an essential aspect of
   suretyship, which is by definition a contract. The Superior Court
   judge's statement of the law to the effect that s. 316 AIAOD
   establishes a legal suretyship is therefore wrong. (147)

The court's finding that the legal relations established by section 316 cannot be explained by the law of solidary obligations, obligations in solidum, or suretyship leaves the statute in a legal vacuum. It is difficult to believe that this result was intended by the legislature when it adopted articles 1525 and 2335 of the Code, especially in view of the preliminary provision, which states that "the Code is the foundation of all other laws." (148) My argument is that it is appropriate and helpful in cases such as this to apply the rules of solidarity or the rules of suretyship, either directly or by analogy, in order to complete the relevant statutory provisions.

In D.I.M.S. Construction, either the contractor or the employer was expected to pay the debt: the commission could require payment from one or the other. It would therefore not be appropriate to apply by analogy the law of suretyship, even though only one party, the contractor, was ultimately liable for the full amount of the debt. The court appeared to recognize that the employer is treated by the statute as a debtor, not a surety, when it held rather ambiguously that "the obligation is imposed directly on the warrantor WARRANTOR. One who makes a warranty. Touchst, 181. ." (149) The obligation created by the statute must be characterized char·ac·ter·ize  
tr.v. character·ized, character·iz·ing, character·iz·es
1. To describe the qualities or peculiarities of: characterized the warden as ruthless.

 as an obligation with multiple debtors. Where such an obligation is created by law, it is presumed joint, (150) but the presumption can be rebutted through the usual techniques of statutory interpretation. Here, since only one debtor is ultimately liable for the full amount of the debt, characterizing the obligation as joint would defeat the purpose of the statute: the commission could obtain nothing from the employer who would escape all liability by invoking the benefit of division. The obligation created by section 316 is therefore solidary.

One area in which an analogy is sometimes drawn with the law of suretyship--correctly this time is the liability of partners for partnership debts. (151) The Code states that "[i]n respect of third persons, the partners are jointly liable for the obligations contracted by the partnership but they are solidarily liable if the obligations have been contracted for the service or operation of an enterprise of the partnership." (152) One's initial impression might be that the Code envisages partners' liability as an obligation with multiple debtors, which is either joint or solidary depending upon the nature of the debt. In a legal system that did not treat partnerships as having any existence distinct from its members, there would be no "obligation contracted by the partnership," but only an obligation contracted in common by the partners. With such a conception of partnership, it would be correct to view the obligation contracted on behalf of the partnership as a joint or solidary obligation of all its partners.

However, the law of Quebec has long moved beyond this conception, even though it has not recognized the partnership as a full legal person. The partnership, under Quebec law, is undoubtedly an entity separate from its members, with the ability to sue and be sued (153) and the capacity to contract in its own name. (154) When the Code describes "the obligations contracted by the partnership," (155) this must be taken literally to mean that the partnership is a contracting party and a debtor in its own right. This provision affects the position of the partners in respect of the partnership's obligations because it cannot be considered that an obligation of the partnership has as its debtors both the partnership and its partners, either jointly or solidarily. Indeed, how could one determine the respective shares of the partnership and its partners in the common debt? The solution cannot be that the partnership is the only debtor with an interest in the debt, since that would have the effect of releasing partners when the obligation is characterized as joint, whereas article 2221 states that partners are responsible for the debt in such a case.

The better solution is therefore to consider partners as quasi-sureties of the partnership. In other words, partners are not debtors: they are merely responsible for partnership debts if the debts are not paid by the partnership. In the presence of several sureties, it is common to refer to their responsibility as being either "joint" or "solidary", with a slightly different meaning being attached to those terms in the context of suretyship. (156) It is entirely plausible that article 2221 contains an implicit reference See explicit link.  to suretyship, and not to joint or solidary obligations.

Indeed, the relations between the partnership, its creditors, and its partners closely resemble those between a debtor, a creditor, and a surety. The partners are not parties to the partnership's obligations, and they are not expected to pay them under normal circumstances. A creditor of the partnership could not invoke compensation with an amount owed to him by an individual partner. Moreover, the partner pursued by a creditor of the partnership could avail himself of all the partnership's defences, with the exception of bankruptcy. (157) A partner should also be allowed to benefit from article 2359 in order to force the partnership to pay its debts.

Still, a difficulty arises with respect to this interpretation, stemming from the second paragraph of article 2221:
   Before instituting proceedings for payment against a partner, the
   creditors [of the partnership] shall first discuss the property of
   the partnership; if proceedings are instituted, the property of the
   partner is not applied to the payment of creditors of the
   partnership until after his own creditors are paid.

This rule conflicts with the benefit of discussion as it applies in the context of suretyship. Indeed, a surety's creditors may not demand that a surety's property be first applied to the payment of their claims, before it is applied to the payment of the principal debtor's obligation. The reinforced benefit of discussion provided at article 2221 exists notably for the protection of partners' personal creditors; it thus detracts from the normal rules of suretyship. (158) Still, that does not mean that in other respects the analogy with suretyship is inadmissible or irrelevant. (159) The partners' liability is best understood as responsibility for the partnership's debts. As we have seen, it is appropriate and helpful to refer by analogy to the law of suretyship in order to complete the rules governing the partners' responsibility under the law of partnership. (160) This is so even though article 2221 will prevail over articles 2347 and 2348 as concerns the benefit of discussion.

A more explicit reference See explicit link.  to the law of suretyship can be found at article 1537, which states that where a solidary obligation is contracted in the exclusive interest of one co-debtor, the other co-debtors are considered, in his regard, as his surety. This rule applies only to the relations between co-debtors; its effects do not extend to the creditor. Thus it does not operate in such a way as to convert the solidary obligation into a relationship of suretyship. However, it illustrates the relevance of applying by analogy the rules of suretyship to other complex relations, in this case to the relations among co-debtors of a solidary obligation. (161)

D. Imperfect Delegation (162)

Traditionally, imperfect delegation was interpreted as the formation of a new and distinct obligation modelled on the original obligation that it was the parties' intention to delegate A person who is appointed, authorized, delegated, or commissioned to act in the place of another. Transfer of authority from one to another. A person to whom affairs are committed by another.

A person elected or appointed to be a member of a representative assembly.
. According to the traditional conception, the new obligation is entered into by the new debtor (i.e., delegate) and accepted by the creditor (i.e., delegatee del·e·ga·tee  
One to whom something is delegated.
). Its content or object is identical to that of the original obligation owed by the original debtor (i.e., delegator) to the creditor. An imperfect delegation therefore implies the coexistence co·ex·ist  
intr.v. co·ex·ist·ed, co·ex·ist·ing, co·ex·ists
1. To exist together, at the same time, or in the same place.

 of two distinct obligations, the original and the new. Payment of one obligation extinguishes the other, since they both relate to the same object. If the creditor discharges the original debtor, thus extinguishing the original obligation, the delegation becomes "perfect" and is equivalent to a novation The substitution of a new contract for an old one. The new agreement extinguishes the rights and obligations that were in effect under the old agreement.

A novation ordinarily arises when a new individual assumes an obligation to pay that was incurred by the original party
 of the debt. (163) In its traditional conception, imperfect delegation is correctly understood to give rise to an obligation in solidum. Both the original and new debtors are independently liable to perform the same prestation, by virtue of two distinct obligations.

The novel structure and new rules implemented in the Code now lend credence to a different conception of delegation. (164) Delegation can be interpreted henceforth in Quebec as an assignment of the original debt, rather than the creation of a new debt copied on the original one, as previously imagined. Indeed, there is no valid objection in principle to allowing the assignment of a debt under Quebec law, just as it is possible to assign a claim. (165) Where a debt is assigned, the creditor need not be party to the assignment. However, the original debtor remains responsible in case of non-payment by the new debtor, unless the original debtor is specially discharged by the creditor. In other words, the creditor need not take part in an imperfect assignment of the debt, but he must consent to a perfect assignment, since for the latter to take effect, the original debtor must be discharged by the creditor. (166)

There are several benefits flowing from the new conception of delegation as an assignment of the debt. For the sake of brevity Brevity
Adonis’ garden

of short life. [Br. Lit.: I Henry IV]


symbolic of transitoriness of life. [Art: Hall, 54]

cherry fair

cherry orchards where fruit was briefly sold; symbolic of transience.
, I will state only the three most important reasons why this conception should be preferred. First, an imperfect delegation can now be completed without the creditor's consent. This of course benefits debtors, for whom it becomes much simpler to reorganize re·or·gan·ize  
v. re·or·gan·ized, re·or·gan·iz·ing, re·or·gan·iz·es
To organize again or anew.

To undergo or effect changes in organization.
 their business or family affairs Family Affairs is a British soap opera. The flagship soap on five, it was the first programme to air on the channel on March 30, 1997, the channel's launch night. The serial was broadcast in half-hour episodes, screening each weeknight.  in the context of a separation, a divorce, or the sale of a business or immovable. Debtors need no longer beg or bargain for the creditor's consent before such reorganization can take place. (167) While creditors may stand to lose in that respect, they also gain in another. Indeed, debtors frequently do not request the creditor's permission before agreeing among themselves to a delegation. The delegation usually takes place in the context of a contractual relation between the original and new debtors to which the creditor is not a party. Yet it may well be in the interest of the creditor to claim the benefit of the imperfect delegation, since he acquires a new debtor in addition to the original one. Under the traditional conception, the delegation takes effect only when the creditor accepts it. Where the creditor has not formally accepted the delegation, there is uncertainty as to its very existence. The delegation will fail, under the traditional conception, if the creditor dies or becomes bankrupt before accepting it, (168) or if the debtors revoke To annul or make void by recalling or taking back; to cancel, rescind, repeal, or reverse.

revoke v. to annul or cancel an act, particularly a statement, document, or promise, as if it no longer existed.
 the delegation before such acceptance has taken place. (169)

A second advantage of the new conception of delegation is that the incidents of the original obligation are preserved, even in cases where the original debtor is discharged. This is because the new debtor is bound by the original obligation itself, not by a new obligation modelled on the original. Thus the new debtor may set up against the creditor the same defences as the original debtor might have set up, with the exception of compensation. (170) More importantly, hypothecs attached to the original obligation are preserved, even if the original debtor is discharged. This represents a significant advantage for the creditor, since it sometimes happens that the original debtor in a delegation is discharged unintentionally. (171) In such cases, if the traditional conception of delegation is followed, the creditor stands to lose not only his personal recourse against the original debtor, but also any security attached to the original debt. Under the new conception, hypothecs are preserved whether or not the original debtor is discharged, just as they are in an assignment of claim.

A third advantage of the new conception is that it provides a better fit with the parties' purpose in carrying out the delegation, and with the legal regime implemented by the Code. In practice, delegation is nearly always used to transfer a debt. The new conception therefore provides a better account of delegation as viewed by the parties. It is less likely to bring about undesired legal consequences such as those previously described.. Modifications introduced in the Code have moved delegation away from the traditional conception and brought it closer to a true assignment of the debt. For example, the Code no longer states that a perfect delegation is equivalent to a novation of the debt, whereas this was clearly the case by virtue of article 1173 in the Civil Code of Lower Canada Civil Code of Lower Canada was the civil code in force in Lower Canada from July 1, 1866 to June 30, 1867 and in Quebec from July 1, 1867 to December 31,1993. The Code was based on the Napoleonic code and replaced a mixture of French law and English law. . The Code has even introduced different rules for delegation and novation. (172)

In light of the new conception just exposed, I will now consider the relations between the parties to an imperfect delegation. The original debtor transfers his obligation to the new debtor, but continues to be responsible in case of non-payment. (173) The creditor need not take part in the delegation itself, but upon receiving notice of it, must pursue relations with the new debtor in respect of the assigned obligation. Payments are now made by the new debtor, not the original debtor. Modifications of the obligation (e.g., renewal of a loan agreement) are carried out by the creditor and new debtor, while the original debtor need not be present. Such relations are therefore analogous to those arising out of a contract of suretyship.

Indeed, the rules on suretyship represent a useful complement to those on imperfect delegation. The extent to which it will be appropriate to refer to them will need to be progressively worked out in light of the relevant practical and policy considerations. At first sight, it seems appropriate that the original debtor should be able to invoke the benefit of discussion and the benefit of subrogation. He might also have recourse to article 2359 of the Code in order to obtain the earliest possible payment of the obligation by the new debtor. (174) It is less certain whether the original debtor should be able to put an end to to destroy.
- Fuller.

See also: End
 his responsibility after three years, in accordance Accordance is Bible Study Software for Macintosh developed by OakTree Software, Inc.[]

As well as a standalone program, it is the base software packaged by Zondervan in their Bible Study suites for Macintosh.
 with article 2362, but the possibility certainly deserves to be entertained. (175) As for the duty to inform, the courts have already transposed it from suretyship to imperfect delegation. (176)

One last point is worthy of note. If the new conception of imperfect delegation is correct, then the co-debtors in a solidary obligation have the ability to convert their relationship to one of quasi-suretyship without the creditor's consent. One co-debtor need only delegate his share in the obligation to the other co-debtor. This solution has long been recognized in the common law: joint and several co-debtors may change their relation to one of suretyship by giving notice to the creditor. (177) This approach has proven valuable in contexts where co-debtors decide to go their separate ways and wish to reorganize their relations such that one co-debtor is no longer a party to the debt. Naturally, it is not possible for the latter to be discharged without the creditor's consent, but at least his role can be reduced to that of surety. He need no longer take part in any agreements regarding the obligation, and he may benefit from the protections provided by the law of suretyship.


In the final analysis, complex relations in which several persons are responsible for the same debt break down into three broad categories. The first category is the obligation with multiple debtors: several persons are bound together by the same obligation to a creditor. Obligations with multiple debtors are either joint, solidary, or indivisible, as determined in accordance with articles 1519 and 1525 of the Code. The second category contains relations in which a person is responsible for the debt of another, though not as a co-debtor. Suretyship, imperfect delegation, and the liability of partners for partnership debts are members of this group. To the extent that it is appropriate, the legal regime of suretyship may be extended by analogy to other legal relations within this category. The third category involves situations in which several distinct obligations are joined together by their object, such that fulfillment ful·fill also ful·fil  
tr.v. ful·filled, ful·fill·ing, ful·fills also ful·fils
1. To bring into actuality; effect: fulfilled their promises.

 of one obligation discharges them all. These have usually been named obligations in solidum, and they have largely been assimilated into solidary obligations.

Solidarity and suretyship have grown closer through the ages, but the difference that continues to set them apart is that a surety, contrary to a co-debtor, is not a party to the secured obligation. The laws of solidarity and suretyship both seek a balance between the reasonable interests of all parties involved. Accordingly, there exist many rules and mechanisms common to both solidarity and suretyship. The rules that differ relate to the idea that a surety, contrary to a co-debtor, is not a party to the principal obligation. That is why the surety may, under certain circumstances, bring his responsibility to an end, why he has certain means of pressuring the debtor who is expected to pay the debt, and why he has a right to be informed by the creditor.

The law has long hesitated to recognize that a debtor may transfer a debt to another without the creditor's consent, whereas the possibility of assigning a claim was admitted much earlier. There are no good reasons to oppose assignment of a debt. There exist safeguards that protect the creditor's legitimate interests, the most important of which is the rule stating that the original debtor is not discharged, but remains responsible in case of non-performance. (178) In the same manner, the Code provides that assignment of a claim may not be "injurious in·ju·ri·ous  
1. Causing or tending to cause injury; harmful: eating habits that are injurious to one's health.

 to the rights of the debtor or [render] his obligation more onerous." (179) Even so, situations occasionally arise where an assignment reveals itself to be detrimental det·ri·men·tal  
Causing damage or harm; injurious.

 to the party who has no other choice but to act in accordance with it, such as in the case of a debtor in an assignment of claim or a creditor in a delegation. Still, on the whole, assignment and delegation are exceedingly ex·ceed·ing·ly  
To an advanced or unusual degree; extremely.


very; extremely

Adv. 1.
 useful operations, and the law has been relatively successful in facilitating such operations while providing sufficient protection to all parties involved.

Legal evolution is often achieved by taking a fresh look at venerable institutions whose interpretation over time has become thwarted, constricted, or stale. Presumptions established to protect debtors and sureties have prevented jurists from borrowing freely from the rules and remedies of solidarity and suretyship, even in cases where to do so is perfectly legitimate. I hope to have shown that solidarity and suretyship represent valuable models to understand other complex relations and that they may be applied directly or extended by analogy where the law is otherwise incomplete. Over the course of the last century, contractual and legal obligations have become progressively more complex and diversified diversified (di·verˑ·s . Legislatures have extended the scope of obligations beyond the original reach of contract or civil responsibility, with a view to protecting consumers, workers, or victims. Meanwhile, legal practitioners have invented new payment mechanisms, new ways of transferring obligations, and new means of securing them. (180) Yet statutory and contractual schemes are frequently incomplete. The civil law must engage with such innovations if it is to continue to provide a model and a guide.

(1) Michelle Cumyn, "La delegation du Code civil du Quebec: une cession The act of relinquishing one's right.

A surrender, relinquishment, or assignment of territory by one state or government to another.

The territory of a foreign government gained by the transfer of sovereignty.

CESSION, contracts.
 de dette?" (2002) 43 C. de D. 601.

(2) See art. 1667 C.C.Q.

(3) See Cumyn, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH ( that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 1. For a summary of the argument, see Part III below.

(4) See art. 1668 C.C.Q.

(5) The section on delegation in the Code only provides rules concerning the defences that may be set up against the creditor by the new debtor (arts. 1669, 1670 C.C.Q.). As seen in Part III.D below, several questions are not addressed. For instance: Must the new debtor be in default before the creditor may pursue the original debtor? May the original debtor invoke the benefit of discussion? Need both the original and new debtors be parties to a modification of the obligation (such as renewal of the loan)? What is the extent of the original debtor's recourses against the new debtor to ensure that the latter pays the debt that has been delegated to him?

(6) See Cumyn, supra note I at 638ff.

(7) Eugene Gaudemet notes the similarity between an original debtor and a surety:

Il est probable, en effet, que le delegant n'a pas voulu procurer a son creancier un benefice benefice (bĕn`əfĭs), in canon law, a position in the church that has attached to it a source of income; also, more narrowly, that income itself.  gratuit, en lui fournissant un nouveau nou·veau  
New and different, often fashionably so: "The perfect [Los Angeles] combination: a gas station that is also a nouveau convenience store" 
 debiteur. Il a voulu avant tout Tout

To promote a security in order to attract buyers.


To foster interest in a particular company or security. For example, a broker might tout a security to a client in the hope that the client will purchase the security.
 ameliorer sa propre situation: la delegation imparfaite ne lui permet pas de se liberer entierement; mais elle lui permet du moins, dans notre systeme, d'ecarter les poursuites du creancier, en s'abritant, en quelque sorte, derriere l'obligation nouvelle du delegue, acceptee par le delegataire. Il retire ainsi de la delegation un avantage immediat. Son obligation ne reparait que si le delegue est incapable de satisfaire le delegataire (Eugene Gaudemet, Etude e·tude  
n. Music
1. A piece composed for the development of a specific point of technique.

2. A composition featuring a point of technique but performed because of its artistic merit.
 sur le transport de dettes a titre particulier (Paris: Librairie nouvelle de droit et de jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. , 1898) at 276-77).

See also Frederic Hubert, Essai d'une theorie juridique de la delegation en droit francais (Poitiers, France: Societe francaise d'imprimerie, 1899) at 192. Bill 125 proposed to codify codify to arrange and label a system of laws.  this rule:
   Where the delegatee [creditor] accepts the delegation, he preserves
   his rights against the delegator [original debtor], unless the
   delegatee evidently intends to discharge him. The delegatee cannot
   exact payment from the delegator, however, before first addressing
   the delegate [new debtor] (Civil Code of Quebec, 1st Sess., 34th
   Leg., Quebec, 1990, art. 1665 [emphasis added]).

Unfortunately the emphasized rule did not find its way into the Code as finally enacted: compare art. 1668 C.C.Q.

(8) See Proulx c. Leblanc, [1969] S.C.R. 765, aff'g (1968), [1969] B.R. 461; Societe Immobiliere Maxima c. Leclerc, [1994] R.D.I. 6 (Qc. C.A.). See also M. Tancelin, "Chronique de jurisprudence: subrogation, garantie d'eviction, vente de la chose d'autrui" (1969) 10 C. de D. 810 at 816ff.

(9) Jurists in Quebec generally consider the terms "obligation", "debt", and "claim" to be synonyms. I too subscribe to Verb 1. subscribe to - receive or obtain regularly; "We take the Times every day"
subscribe, take

buy, purchase - obtain by purchase; acquire by means of a financial transaction; "The family purchased a new car"; "The conglomerate acquired a new company";
 this view. Note, however, that the three terms are distinguished in an important work: Jacques Ghestin, Marc Billiau & Gregoire Loiseau, Traite de droit civil: le regime des creances et des dettes (Paris: Librairie generale de droit et de jurisprudence, 2005) at para. 1ff.

(10) See arts. 1525, 2335 C.C.Q.

(11) See Dostie c. Sabourin, [2000] R.J.Q. 1026, [2000] R.R.A. 321 (C.A.) [Dostie]; Prevost-Masson v. General Trust of Canada, 2001 SCC SCC - strongly connected component  87, [2001] 3 S.C:R. 882, 207 D.L.R. (4th) 1; Chartre c. Exploitation agricole et forestiere des Laurentides, [2002] R.J.Q. 1623, [2002] R.D.I. 428 (C.A.) [Chartre]; Gilles E. Neron Communication Marketing v. Chatobre des Notaires du Quebec, 2004 SCC 53, [2004] 3 S.C.R. 95, 241 D.L.R. (4th) 577.

(12) See art. 2333 C.C.Q.

(13) Herein lies the essential difference between solidarity and indivisibility in·di·vis·i·ble  
1. Incapable of undergoing division.

2. Mathematics Incapable of being divided without a remainder: The number 15 is indivisible by 7.
. An obligation is divisible or indivisible with respect to its object, whether or not there are multiple parties to the obligation (art. 1519 C.C.Q.). If the object is indivisible, that is--if the obligation cannot be performed in several parts--and if it has multiple debtors, the effects of indivisibility are similar to those of solidarity (art. 1520 C.C.Q.). This paper focuses on solidarity and suretyship.

(14) See arts. 1541ff. C.C.Q.

(15) See arts. 1523ff. C.C.Q.

(16) See arts. 1523, 1528 C.C.Q.

(17) See arts. 1536-37 C.C.Q.

(18) See arts. 2333, 2346 C.C.Q.

(19) See art. 2356 C.C.Q.

(20) See art. 1537 C.C.Q.

(21) See arts. 2347ff. C.C.Q.

(22) The risk of confusion between solidarity and suretyship is accentuated by certain provisions of the Code: "if the obligation was contracted in the exclusive interest of one of the debtors ... he is liable for the whole debt to the other co-debtors, who are then considered, in his regard, as his sureties" (art. 1537 C.C.Q. [emphasis added]); "[w]here the surety binds himself with the principal debtor as solidary surety or solidary codebtor, he may no longer invoke the benefits of discussion and division" (art. 2353 C.C.Q. [emphasis added]). Nevertheless, a solidary obligation contracted in the exclusive interest of one co-debtor is not a suretyship, and a solidary suretyship is different from a solidary obligation. See Part II, below.

(23) See Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town Cape Town or Capetown, city (1991 pop. 854,616), legislative capital of South Africa and capital of Western Cape, a port on the Atlantic Ocean. It was the capital of Cape Province before that province's subdivision in 1994. : Juta & Co., 1992) at 128-29; Mare Mignot, Les obligations solidaires et les obligations in solidum en droit prive francais (Paris: Dalloz, 2002).

(24) see J.A.C. Thomas, The Institutes of Justinian: Text, Translation and Commentary (Amsterdam: North-Holland, 1975) at 211.

(25) See art. 1524 C.C.Q., where this rule is replicated.

(26) See Antoine Hontebeyrie, Le fondement de l'obligation solidaire en droit prive francais (Paris: Economica, 2004).

(27) Ibid. at 14.

(28) "[Solidarity] on the part of the debtors ... consists in the obligation of the same thing being contracted by each for the whole, as completely as if each was the single debtor," and "each should be as completely bound for the performance of the whole, as if he alone had contracted the obligation": M. Pothier, A Treatise A scholarly legal publication containing all the law relating to a particular area, such as Criminal Law or Land-Use Control.

Lawyers commonly use treatises in order to review the law and update their knowledge of pertinent case decisions and statutes.
 on the Law of Obligations, or Contracts, vol. 1, trans, by William David Evans David Evans may mean:
  • David Evans, composer (1874-1948)
  • David A. Evans (born 1941), organic chemistry professor at Harvard
  • David Allan Evans (born 1940), American poet
  • David C.
 (London, U.K.: Strahan, Butterworth & Cooke, 1806) at paras Paras may refer to:
  • Paras, Crown Prince of Nepal
  • "The Paras", a nickname of the Parachute Regiment (United Kingdom), an elite regiment of the British Army
  • "The Paras" is a nickname given to the Parachute Regiment (India) of the Indian Army which include the Special
. 261-62.

(29) See arts. 1528-29 C.C.Q.

(30) See art. 1599 C.C.Q.

(31) See art. 2900 C.C.Q.

(32) See art. 1538 C.C.Q.

(33) See e.g. Lallier c. Forand, [2000] R.D.I. 637 (C.S.); Labonne c. Robichaud (17 July 2001), Mingan (Sept-Iles) 650-22-001092-002, J.E. 2001-1526 (C.Q.); Forget c. Lamoureux, [1999] R.J.Q. 853 (C.Q. civ); Prevost c. Rivard, [1972] C.A. 773.

(34) See Hontebeyrie, supra note 26 at 15. See also Pothier, supra note 28 at para. 264: "When several persons contract a debt in solido IN SOLIDO. A term used in the civil law, to signify that a contract is joint.
     2. Obligations are in solido, first, between several creditors; secondly, between several debtors. 1.
 [solidarily] it is only in respect of the creditor that they are debtors of the whole; as between themselves the debt is divided, and each of them is only debtor pro se, as to that part of the debt of which he was the cause."

(35) See art. 1537 C.C.Q. This applies to solidary obligations but also, by analogy, to joint and divisible obligations.

(36) See arts. 1530, 1533-35, 1538 para. 2, 1678, 1685, 1690 C.C.Q Where the creditor of a solidary obligation sends separate accounts to individual co-debtors, each for his share of the debt, he is merely acknowledging the co-debtors' perspective, which does not mean that he has renounced the benefit of solidarity. Such renunciation The Abandonment of a right; repudiation; rejection.

The renunciation of a right, power, or privilege involves a total divestment thereof; the right, power, or privilege cannot be transferred to anyone else.
 takes place only within the precise conditions of arts. 1533-35 C.C.Q. See also Juneau c. Groupe Promutuel, [2003] R.J.Q. 2616 (C.S.).

(37) See art. 1518 C.C.Q.

(38) France Allard et al., eds., Private Law Dictionary A law dictionary is a dictionary that is designed and compiled to give information about terms used in the field of law.

A distinction is made between different types of law dictionaries. A monolingual law dictionary covers one language, a bilingual covers two.
 and Bilingual bi·lin·gual  
a. Using or able to use two languages, especially with equal or nearly equal fluency.

 Lexicons: Obligations (Cowansville, Qc.: Yvon Blais, 2003) s.v. "jointly and severally Jointly and Severally

1. A legal term describing a partnership in which individual decisions are bound to all parties involved and thus undivided.

2. A term used in underwriting syndicates to refer to the distinct responsibility of individual companies to sell a certain
"; Pierre-Gabriel Jobin with the collaboration of Nathalie Vezina, Baudouin et Jobin: Les obligations, 6th ed. (Cowansville, Qc.: Yvon Blais, 2005) at para. 637 [Jobin, Les obligations]; J. Pineau, D. Burman & S. Gaudet, Theorie des obligations, 4th ed. by Jean Pineau & Serge serge 1  
A twilled cloth of worsted or worsted and wool, often used for suits.

[Middle English sarge, from Old French, from Vulgar Latin *s
 Gaudet (Montreal: Themis, 2001) at para. 397. See also Latraverse c. 120832 Canada (1 March 1990), Montreal 500-09-001291-897, J.E. 90-530 (C.A.).

(39) The Civil Code of Lower Canada used the expression "jointly and severally" as the English equivalent of "solidaire" (arts. 1688, 1836, 1865 C.C.L.C.). The French expression "conjointement et solidairement" was used instead of simply "solidairement", but still as the equivalent to "jointly and severally" (arts. 1688, 1836, 1865 C.C.L.C.). The expressions "conjointement et solidairement" and "jointly and severally" have now been banished from the Code. It is likely that the codifiers in 1866 borrowed the English expression "joint and several" from the common law, where joint and several liability closely resembles solidarity. It would be tempting to assume further that the English common law expression "joint and several" then passed into the French language in Quebec as "conjoint et solidaire". However, the latter view appears to be mistaken, since the expression "conjoint et solidaire" was commonly used in France as well as Quebec, and has been in use for a long time. See Hontebeyrie, supra note 26 at 20-22. See also Paul Ourliac & J. de Malafosse, Histoire du droit prive: les obligations, vol. 1 (Paris: Presses universitaires de France, 1969) at para. 303.

(40) See Catherine Soanes & Angus Stevenson, eds., The Concise Oxford English Dictionary Concise Oxford English Dictionary (until 2002 officially entitled The Concise Oxford Dictionary, and widely known by the abbreviation COD) is probably the best-known of the 'smaller' Oxford dictionaries. , 11th ed., s.v. "joint" ("shared, held, or made by two or more people"); Alain Rey & Josette Rey-Debove, eds., Le nouveau Petit Robert Le Petit Robert is a popular single-volume French dictionary first published by Paul Robert in 1967, an abridgement of his 8-volume Dictionnaire alphabétique et analogique de la langue française. : dictionnaire alphabetique et analogique de la langue langue  
Language viewed as a system including vocabulary, grammar, and pronunciation of a particular community.

[French, from Old French; see language.]
 francaise, 40th ed., s.v. "conjointement" ("[d]'une maniere conjointe; concurremment; ensemble, simultanement").

(41) See Didier Lluelles & Benoit Moore, Droit des obligations (Montreal: Themis, 2006) at para. 2551. See also Hontebeyrie, supra note 26 at 349-50; Ghestin, Billiau & Loiseau, supra note 9 at para. 226.

(42) While the Civil Code of Lower Canada and the Code Napoleon Napoleon
 French Napoléon Bonaparte orig. Italian Napoleone Buonaparte

(born Aug. 15, 1769, Ajaccio, Corsica—died May 5, 1821, St. Helena Island) French general and emperor (1804–15).
 did not define a joint obligation, both contained the following provision, which clearly supports the view that a joint obligation is the common branch from which stem solidary, divisible, and indivisible obligations: "Chacun de ceux qui ont contracte conjointement une dette indivisible en est tenu pour le total, encore que l'obligation n'ait pas ete contractee solidairement" (art. 1126 C.C.L.C; art. 1222 C.N.). See also arts. 1772, 2230 C.C.L.C. The definition of a joint obligation now reflects the view that it is necessarily divisible and cannot be solidary (art. 1518 C.C.Q.).

In common law, the joint obligation possesses its own legal regime representing yet another possible meeting point between the co-debtors' and creditor's perspectives. The co-debtors are treated as one entity, such that they must all be pursued together by the creditor. In this way, they are individually protected, since legal action taken against one co-debtor by the creditor is not opposable to the others and the debtor pursued may demand that the others be joined in the action. Yet once the creditor has obtained judgment against the co-debtors together, the judgment may be executed against the property of a single defendant for the full amount of the debt: the joint obligation is not subject to the benefit of division. The joint obligation was often found to be inconvenient in·con·ven·ient  
Not convenient, especially:
a. Not accessible; hard to reach.

b. Not suited to one's comfort, purpose, or needs: inconvenient to have no phone in the kitchen.
, and the tendency has been to replace joint obligations by joint and several obligations, which closely resemble solidarity. See generally Glanville L. Williams, Joint Obligations: A Treatise on Joint and Joint and Several Liability in Contract, Quasi-Contract and Trusts in England, Ireland and the Common-Law Dominions (London, U.K.: Butterworths, 1949).

(43) See supra note 13.

(44) Whether the debt is solidary or divisible, it is contracted in common and modification of the debt requires the consent of all co-debtors: see infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.

infra prep.
 note 88. It is necessary to determine the share of each co-debtor in the debt following art. 1537 C.C.Q. Payment of the entire debt by one co-debtor releases the other co-debtor and entitles the former to be reimbursed by the latter. In my view, this should hold true whether the debt is solidary or divisible. See e.g. arts. 1536, 1539, 1656 para. 3 C.C.Q. However, Lluelles and Moore consider that legal subrogation is not available where a co-debtor pays the full amount of a debt subject to the benefit of division (supra note 41 at para. 2553). See also Remy Cabrillac, L'acte juridique conjonctif en droit prive francais (Paris: Librairie generale de droit et de jurisprudence, 1990) at paras. 429ff., 592ff. (concerning the common effects 0f obligations with multiple debtors).

(45) See Hontebeyrie, supra note 26 at 21-22, 281ff.

(46) See art. 1518 C.C.Q.

(47) Supra note 26 at 385ff.; Laurent Aynes &Antoine Hontebeyrie, "Pour une reforme du code civil, en matiere d'obligation conjointe et d'obligation solidaire" D. 2006. Chron 328.

(48) See Hontebeyrie, supra note 26 at 421-22.

(49) See e.g. Commission on European Contract Law, Principles of European Contract Law: Part III, ed. by Ole Lando et al. (The Hague: Kluwer Law International, 2003) at art. 10:102. See also Code Europeen des contrats: avant-projet; t. 1, by Giuseppe Gandolfi (Milan: Dott. A. Giuffre, 2004) at art. 88(1). See also Aynes & Hontebeyrie, supra note 47.

(50) See art. 1525 C.C.Q.

(51) For the first in-depth analysis of obligation in solidum in Quebec law, see Frederic Levesque, L'obligation in solidum en droit prive quebecois (D.C.L. Thesis, Laval University Laval University, at Quebec, Que., Canada; Roman Catholic, coeducational, French language; chartered 1852, an outgrowth of a seminary established 1663 by Bishop Laval. In 1876 a branch was established in Montreal, which in 1919 became independent as the Univ.  and Universite de Montpellier 1, 2009) [unpublished].

(52) See generally Jean Brissaud, A History of French Private Law, trans, by Rapelje Howell (Boston: Little, Brown and Company, 1912) at paras. 413-15; Ourliac & Malafosse, supra note 39 at paras. 310, 315-16; Marcel Marcel

the fast ebbing of time impels him to devote his life to recording it. [Fr. Lit.: Proust Remembrance of Things Past]

See : Time
 Gambier gambier: see catechu. , Du cautionnement dans le tres ancien droit romain, et le tres ancien droit francais (Caen, France: Imprimerie E. Adeline, 1896).
      Suretyship is among the most ancient, known legal institutions. A
   Sumerian tablet has been found recording a suretyship in about 2750
   B.C. The Code of Hammurabi and the Old Testament also bear witness
   to its frequent use. See Willis D. Morgan, "The History and
   Economics of Suretyship: Early History of the Contract of
   Suretyship" (1927) 12 Cornell L.Q. 153.

(53) See art. 2334 C.C.Q.

(54) It must be noted that the modern notion of suretyship was already present in classical Roman law, particularly in the form of fidejussio.

(55) See Brissaud, supra note 52 at paras. 408-12. See art. 1 C.C.P.; arts. 2644-45 C.C.Q.; Jacques Deslauriers, Precis de droit des suretes, 2d ed. (Montreal: Wilson & Lafleur, 1990) at 1-4, 19-20; Jobin, Les obligations, supra note 38 at para. 17.

(56) Brissaud, supra note 52 at para. 416ff.

(57) See Philippe Simler, Cautionnement: garanties autonomes garanties indemnitaires, 4th ed. (Paris: Litec, 2008) at para. 2; Alain Parent, "La liberation de la caution par la mise en oeuvre de rarticle 2363 du Code civil du Quebec : de la theorie a la pratique pra·tique  
Clearance granted to a ship to proceed into port after compliance with health regulations or quarantine.

[French, from Old French practique, from Medieval Latin
" (2006) 47 C. de D. 515 at 529-30.

(58) According to Brissaud, this gave rise to the gibe gibe also jibe  
v. gibed also jibed, gib·ing also jib·ing, gibes also jibes

To make taunting, heckling, or jeering remarks.
. "The banquet of a hostage is a costly banquet": Brissaud, supra note 52 at para. 414, citing A. Chaisemartin, Proverbes et maximes de droit germanique (Paris: L. Larose et Forcel, 1891) at 264.

(59) A similar evolution took place in English law The system of law that has developed in England from approximately 1066 to the present.

The body of English law includes legislation, Common Law, and a host of other legal norms established by Parliament, the Crown, and the judiciary.
. "Suretyship was no longer seen as the substitution of the surety's person for that of the debtor. It came to be regarded as a contractual obligation which arose by way of accession Coming into possession of a right or office; increase; augmentation; addition.

The right to all that one's own property produces, whether that property be movable or immovable; and the right to that which is united to it by accession, either naturally or artificially.
 to the debtor's liability": James O'Donnovan & John Phillips John Phillips or John Philips may refer to:
  • John Aristotle Phillips (fl. 1977), American undergraduate amateur A-bomb designer
  • John Calhoun Phillips (1870–1943), Governor of Arizona, 1929–1931
, The Modern Contract of Guarantee (London, U.K.: Sweet and Maxwell, 2003) at paras. 1-12.

(60) See Zimmermann, supra note 23 at 130-31.

(61) See art. 2347 C.C.Q.

(62) See Ourliac & Malafosse, supra note 39 at para. 317.

(63) The Civil Code Revision Office recommended the abolition The destruction, annihilation, abrogation, or extinguishment of anything, but especially things of a permanent nature—such as institutions, usages, or customs, as in the abolition of Slavery.

In U.S.
 of the benefit of discussion as a matter of suppletive Sup´ple`tive

a. 1. Supplying deficiencies; supplementary; as, a suppletory oath s>.

A major change proposed is abolition of the benefits of discussion and of division. Since at present most contracts of suretyship contain clauses by which the parties renounce these benefits, it seemed more realistic to propose the opposite rule to that of the Code; since this rule would only be suppletive, the parties would always have the possibility of including it by express stipulation (Civil Code Revision Office, Report on the Quebec Civil Code : Commentaries, t. 2, vol. 2, (Quebec: Editeur officiel, 1977) at 584-85).

The minister of justice did not follow this recommendation. "Il n'a pas paru souhaitable d'inverser cette regle, meme si, bien souvent, dans les faits, il y a renonciation au benefice de discussion ; le maintien du principe du benefice de discussion vise a proteger la caution en lui permettant ainsi de se defendre dans la negociation d'une stipulation contraire": Commentaires du ministre de la Justice : le Code civil du Quebec, t. 2 (Quebec: Les publications du Quebec, 1993) at 1473.

(64) See art. 2348 C.C.Q.

(65) According to Pothier,
   it is equitable, that in as far as it can be done, a debt shall be
   paid rather by those who are the real debtors and who have profited
   by the contract, than by those who are debtors for others; that it
   always goes against the grain to pay for another; therefore, it is
   only a reasonable indulgence that the creditor, when it makes very
   little difference to him, should spare the surety this
   mortification, and obtain payment rather from the real debtor than
   from him (supra note 28 at para. 412).

Financial institutions will generally exercise their hypothecary rights and personal recourse against the debtor first, before turning to the surety, even if the surety has renounced the benefit of discussion. This is because it is generally perceived as unfair or unethical unethical

said of conduct not conforming with professional ethics.
 for a creditor to pursue the surety when a recourse against the debtor stands a fair chance of success, and financial institutions must protect their reputation with the public. There is also a risk that if the surety resists and a creditor needs to take her to court, a judge will be sympathetic to the surety and more likely to invalidate in·val·i·date  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.

 the suretyship on other grounds, if it is shown that the creditor neglected to pursue his claim against the debtor. Thus the benefit of discussion gives expression to an important principle and is somewhat effective in practice, even if it is frequently renounced by the surety.

In recent times, some codifiers have been tempted to suppress To stop something or someone; to prevent, prohibit, or subdue.

To suppress evidence is to keep it from being admitted at trial by showing either that it was illegally obtained or that it is irrelevant.
 the benefit of discussion, having noted that it is frequently renounced by the surety (see supra note 63). This fails to account for the significance of the rule as a guide for conduct and the expression of a common sense of justice or moral acceptability. Moreover, as will be seen in Part III, the benefit of discussion will avail in cases where the law of suretyship is applied by analogy to other complex relations.

(66) See Damien Grimaud, Le caractere accessoire du cautionnement (Aix-en-Provence: Presses universitaires d'Aix-Marseilles, 2001) at para. 7; Zimmermann, supra note 23 at 121ff.

(67) See arts. 2340-41, 2353 C.C.Q.

(68) Simler, supra note 57 at paras. 29-30, 47-51; Grimaud, supra note 66 at paras. 8, 39-41. Some authors are criticized for unduly extending the doctrine beyond its original Scope. See Zimmermann, supra note 23; Grimaud, supra note 66 at paras. 5-6.

Note that a surety "may set up against the creditor all the defences of the principal debtor, except those that are purely personal to the principal debtor or that are excluded by the terms of his undertaking"' (art. 2353 C.C.Q.). There exist other longstanding exceptions to the accessory character of suretyship: the suretyship of a natural obligation is enforceable (art. 2340 C.C.Q.), as well as the suretyship of an obligation contracted by a debtor who is incapable of contracting, even after the obligation is annulled (ibid.). It is generally considered that these exceptions bring into play a promise for another (i.e., promesse du fait d'autrui or promesse de porte-fort) and are themselves incompatible with suretyship (art. 1443 C.C.Q.). Thus the accessory nature of suretyship is preserved despite the presence of exceptions. See Simler, supra note 57 at para. 224; Grimaud, supra note 66 at 205, n. 188.

(69) See generally Ervin Ap. Popa, Les notions de "debitum" (Schuld) et 'bbligation" (Haftung) et leur application en droit francai's moderne mo·derne  
Striving to be modern in appearance or style but lacking taste or refinement; pretentious.

[French, modern, from Old French; see modern.]

Adj. 1.
 (Paris: E. Muller, 1935); Jean Maillet, La theorie de Schuld et Haftung en droit romain : expose et examen ex·a·men  
An examination; an investigation.

[Latin exmen, a weighing out; see examine.]

Noun 1.
 critique (Aix-en-Provence: Paul Roubaud, 1944); Fabio Konder Comparato, Essai d'analyse dualiste de l'obligation en droit prive (Paris: Librairie Dalloz, 1964); Nooman M.K. Gomaa, Theorie des sources de l'obligation (Paris: Librairie generale de droit et de jurisprudence, 1968) at paras. 282-87; Stephane Prigent, "Le dualisme dans l'obligation" (2008) R.T.D. civ. 401. In support of the dualist conception, see also Jean Carbonnier Jean Carbonnier (1908-2003) was a professor at the Faculty of Law at the University of Poitiers from 1937-1955, then at the Sorbonne until 1976.

Dean Carbonnier renewed the French Civil Code, especially in the domain of Family Law (See his "Treatise on Civil Law" in five
, Droit civil : les obligations, t. 4, 22d ed. (Paris: Presses universitaires de France, 2000) at para. 313; Henri Mazeaud et al., Lecons de droit civil : obligations, theorie generale, t. 2, vol. 1, 8th ed. by Francois Chabas (Paris: Montchrestien, 1991) at paras. 9, 22; Martine Behar-Touchais, "Le banquier Le Banquier (translated: The Banker) is the Canadian French language adaptation of the reality television show Deal or No Deal. It debuted on January 24, 2007 at 9pm on the TVA network. The program, produced in Montréal by JPL Production II Inc.  et la caution face a la defaillance du debiteur" (1993) R.T.D. civ. 737 at para. 6. See also Jobin, Les obligations, supra note 38 at para. 16.

Several common law authorities seem to echo the dualist conception: Statute of Frauds Statute of Frauds: see Frauds, Statute of. , 1677 (Eng.), 29 Cha. II, c. 3, s. 4 [Statute of Frauds (Eng.)]. Here, a guarantee is defined as "any special Promise to answer for the Debt, Default or Miscarriages of another Person" [emphasis added] (ibid.). See also O'Donnovan & Phillips, supra note 59 ("In essence, a guarantee is a binding promise of one person to be answerable for a present or future debt or obligation of another if that other defaults" at para. 1-18 [emphasis added]); 'The teutonic "answer for' is used here in a sense more accurately connoted in modern English Modern English
English since about 1500. Also called New English.

Modern English

the English language since about 1450

Noun 1.
 by its romance equivalent 'be responsible for"': Lep Air Services v. Rolloswin Ltd. (1972), [1973] A.C. 331 at 357, [1972] W.L.R. 1175 (H.L.) [emphasis added, reference omitted, Lep Air].

(70) See Comparato, supra note 69 at para. 4; Maillet, supra note 69 at 4-47.

(71) See art. 1590 C.C.Q.

(72) See arts. 2644, 2645 C.C.Q.

(73) See Comparato, supra note 69 at para. 158; art. 574 C.C.P.

(74) See Alois Brinz, Lehrbuch der Pandekten, vol. 2 (Erlangen: Andreas Deichert, 1879) at paras. 206-208.

(75) See Comparato, supra note 69 at paras. 6-9; Popa, supra note 69 at paras. 3-30ff. Brissaud, supra note 52 at para. 368; Ourliac & Malafosse, supra note 39 at para. 310; Gambier, supra note 52 at 5-6, n. 18.

(76) See e.g. Comparato, supra note 69 at para. 193; Carbonnier, supra note 69 at para. 313. Some authors have criticized the analysis of suretyship based on the dualist conception (see e.g. Grimaud, supra note 66 at paras. 187, 400). Others have presented a modified or transformed dualist analysis and stated that the surety's obligation borrows its debt, or an element of its debt, from the principal obligation: "Garantir le paiement, ce n'est pas directement s'engager a payer, et, si chaque fois que la caution est cependant conduite a payer c'est, dit-on, l'obligation du debiteur qu'elle acquitte, elle l'acquitte en vertu d'une obligation qui lui est propre" (Francois Jacob, Le constitut ou l'engagement autonome de payer la dette d'autrui a titre de garantie (Paris: Librairie generale de droit et de jurisprudence, 1998) at para. 56). The surety's obligation has variously been described as an obligation of guarantee (obligation de garantie), an obligation to pay another's debt (obligation de reglement) or, where applicable, an obligation to secure future debts (obligation de couverture Noun 1. couverture - chocolate that contains at least 32 percent cocoa butter
chocolate - a food made from roasted ground cacao beans
). See Christian Mouly, Les causes d'extinction du cautionnement (Paris: Librairies techniques, 1979) at para. 256.

I have not found the arguments raised against the dualist conception to be decisive. They may be summarized as follows: (1) the definitions of debt and responsibility are imprecise im·pre·cise  
Not precise.

impre·cisely adv.
 and ambiguous; (2) the contract of suretyship, because it is a contract, necessarily gives rise to a full obligation that it imposes on the surety; and it follows that (3) the surety has a debt (not just responsibility for a debt) and is required to pay the secured obligation.

The first objection, directed against the dualist conception in general, is well founded, since dualist authors do not agree on the exact scope of debt and responsibility. However, that does not mean that the theory is invalid or that its core ideas cannot provide valuable insight into the structure of obligations.

The second and third objections concern the application of the dualist conception to suretyship. The second can be overcome if one admits that contracts may have legal effects that are not, properly speaking Adv. 1. properly speaking - in actual fact; "properly speaking, they are not husband and wife"
strictly speaking, to be precise
, obligations. For example, the modification, transfer, or extinction extinction, in biology, disappearance of species of living organisms. Extinction occurs as a result of changed conditions to which the species is not suited.  of a real or personal right may be effected by contract (art. 1433 C.C.Q.). They occur directly and independently of any obligation. Thus the surety's undertaking need not be conceived of as an obligation. In fact, the so-called obligation de couverture and obligation de garantie do not, on closer analysis, have the consistency of obligations, since they do not require the surety to do or not to do something (art. 1373 C.C.Q.). See Pascal Ancel, "Force obligatoire et contenu obligationnel du contrat" (1999) R.T.D. civ. 771 at para. 41. In my view, the surety becomes a debtor only when a judgment is rendered against her. For a response to the third objection, see infra Part II.B.

(77) On primary and secondary obligations, see generally Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827 at 848-49, [1980] 2 W.L.R. 283 (H.L.). In the context of guarantees, see generally Lep Air, supra note 69 at 350-51; Western Dominion dominion, power to rule, or that which is subject to rule. Before 1949 the term was used officially to describe the self-governing countries of the Commonwealth of Nations—e.g., Canada, Australia, or India.  Inv. Co. Ltd. v. MacMillan, [1925] 2 D.L.R. 442 (Man. King's B.), aff'd (1925), 35 Man. R. 262, [1925] 4 D.L.R. 562 (C.A.).

One also finds references to the distinction between primary and secondary obligations in Quebec law. See Lluelles & Moore, supra note 41 at para. 95; Telemedia Communications c. Samson (1984), [1985] R.D.J. 478 (Qc. C.A.); Mazeaud et al., supra note 69 at 7, n. 9. Mazeaud and Chabas suggest that there are really three aspects to an obligation: the debt (i.e., the primary obligation), the responsibility for the debt (i.e., the secondary obligation), and the power of constraint Constraint

A restriction on the natural degrees of freedom of a system. If n and m are the numbers of the natural and actual degrees of freedom, the difference n - m is the number of constraints.
 (i.e., the common pledge).

(78) All authors writing on suretyship generally recognize this to some extent, although they do not always accept the dualist conception or the interpretation of the surety's undertaking as a secondary obligation. See e.g. Manuela Oury-Brule, L'engagement du code-biteur solidaire non interesse a la dette : article 1216 du Code civil (Paris: Librairie generale de droit et de jurisprudenee, 2002) at para. 36.

(79) See art. 2352 C.C.Q.

(80) See Deslauriers, supra note 55 at 26; Simler, supra note 57 at para. 86; Oury-Brule, supra note 78 at para. 179.

(81) Mignot is a proponent One who offers or proposes.

A proponent is a person who comes forward with an a item or an idea. A proponent supports an issue or advocates a cause, such as a proponent of a will.

PROPONENT, eccl. law.
 of this thesis (supra note 23).

(82) See Comparato, supra note 69 at para. 178ff.

(83) See Hontebeyrie, supra, note 26 at 381-83.

(84) See arts. 1385, 1434 C.C.Q.

(85) See art. 1440 C.C.Q.

(86) See Oury-Brule, supra note 78 at para. 62ff.

(87) See art. 1439 C.C.Q. The parties to a contract may be defined as those persons who, by means of an agreement between them, have the power to modify or put an end to the contract: Jacques Ghestin, Christophe Jamin & Marc Billiau, Traite de droit civil : les effets du contrat, 3d ed. (Paris: Librairie generale de droit et de jurisprudence, 2001) at paras. 695, 714.

(88) See Banque Nationale Banque Nationale (French: "National bank") may refer to:
  • BNP Paribas (Banque Nationale de Paris), commercial bank
  • National Bank of Canada (Banque Nationale du Canada), commercial bank
  • National Bank of Belgium (Banque Nationale de Belgique
 du Canada c. Cote, [1991] R.J.Q. 1520 (C.Q. civ.); Ayotte c. Banque Nationale du Canada (16 December 2002), Montreal 500-22-066454-011, J.E. 2003-207 (C.Q. civ.).

(89) This holds true whether lessees are solidary (e.g., in a commercial lease) or joint (e.g., in the lease of a dwelling, unless solidarity is expressly provided in the lease) (art. 1525 C.C.Q.). See Pierre-Gabriel Jobin, "Resiliation et renouvellement du bail conclu avec plus d'un locataire : le difficile menage a trois" (1987) 66 R. du B. can. 305 at 331, 338-40 [Jobin, "Resiliation"]; Cabrillac, supra note 44.

(90) See art. 2130ff. C.C.Q.

(91) See art. 1444ff. C.C.Q. See also art. 397 C.C.Q.

(92) See Oury-Brule, supra note 78 at para. 64.

(93) See Confederation A union of states in which each member state retains some independent control over internal and external affairs. Thus, for international purposes, there are separate states, not just one state. , compagnie d'assurance-vie c. Traklin Holdings inc. (7 April 1994), Montreal 500-05-007130-923 J.E. 94-705 (Qc. Sup. Ct.); Vezina c. Barette (1999), AZ-99036211 (C.Q. civ.) (AZ). Even in cases where a surety signs the agreement creating the principal obligation, such a fact does not make the surety a party to the principal obligation: Armoires D.L.M. c. Constructions Plani-sphere (29 January 1996), Beauce (Saint-Joseph-de-Beauce) 350-05-000230-944, J.E. 96-639 (Qc. Sup. Ct.); Ghestin, Jamin & Billiau, supra note 87 at paras. 701-702. Naturally, novation of the secured obligation releases the surety: Roy c. Caisse populaire de Chibougamau (1992), [1993] R.L. 565 (Qc. C.A.). See also Aktiengesellschaft v. Music Mart (1987), 7 Q.A.C. 284.

(94) See art. 2362 C.C.Q.

(95) Although the relationship between a debtor and a surety is frequently described as contractual, it is not a mandate (see Simler, supra note 57 at paras. 13-14, 17-19). See also Ghestin, Jamin & Billiau, supra note 87 at para. 717. Nor is the surety a mandatary of the debtor. See Banque nationale du Canada c. Notre-Dame du Lac (Ville de), [1990] R.L. 339 (Qc. C.A.) [Notre-Dame].

(96) See arts. 2342, 2362 C.C.Q.

(97) According to the alternative interpretation found in the common law, the Surety undertakes a secondary obligation to pay damages, but does not take part in the principal obligation of the debtor. I will refer to the dualist interpretation--the theoretical framework I prefer to employ in explaining the structure of obligations in the civil law tradition.

(98) Art. 2333 C.C.Q [emphasis added]. See also art. 2345 C.C.Q.

(99) See art. 2011 C. civ.: "Celui qui se rend rend  
v. rent or rend·ed, rend·ing, rends
1. To tear or split apart or into pieces violently. See Synonyms at tear1.

 caution d'une obligation se soumet envers le creancier a satisfaire a cette obligation, si le debiteur n'y satisfait pas lui-meme" [emphasis added].

(100) See art. 1555 C.C.Q. Contra contra

Member of a counterrevolutionary force that sought to overthrow Nicaragua's left-wing Sandinista government. The original contras had been National Guardsmen during the regime of Anastasio Somoza (see Somoza family). The U.S.
 Vallee c. Roy, [1978] C.S. 706.

(101) See art. 2359 C.C.Q.

(102) See Oury-Brule, supra note 78 at para. 629.

(103) See art. 2346 C.C.Q.; Gauthier c. Marche E Prud'homme, [1992] R.D.J. 396 (C.A.); Marmen v. Boudreault, [1955] B.R. 686 at 689 (Qc. C.A.).

(104) See art. 1599 C.C.Q.

(105) See art. 2353 C.C.Q.

(106) See arts. 1678, 1685, 1690 C.C.Q. As we have seen, such exceptions are a partial recognition of the debtors' perspective (see supra note 36).

(107) Such compensation becomes possible only once the surety is condemned con·demn  
tr.v. con·demned, con·demn·ing, con·demns
1. To express strong disapproval of: condemned the needless waste of food.

 by judgment. The surety who pays pursuant to such a judgment pays his own debt (see below). Contra Deslauriers, supra note 55 at 70.

(108) See Pothier, supra note 28 at para. 274.

(109) See art. 1555 C.C.Q.

(110) At least based on interpretation of contractual terms and standard practice in the industry, this appears to be the dominant view. See Notre-Dame, supra note 95; Association provinciale des constructeurs d'habitations du Quebec (A.P.C.H.Q.) inc. c. Habitations Caron & Raynault (26 March 1999), Longueil 505-02-004536-961, J.E. 99-942 (C.Q.); Simler, supra note 57 at paras. 42, 209; Olivier F. Kott & Claudine Roy, La construction au Quebec : perspectives juridiques (Montreal: Wilson & Lafleur, 1998) at 651 52. Compare Louise Poudrier-LeBel, Le cautionnement par compagnie de garantie (Cowansville, Qc.: Yvon Blais, 1986) at paras. 221-22, 597 (arguing that the surety may be compelled to perform the debtor's obligation in kind). In the common law tradition, a surety's responsibility is always in the form of damages (i.e., secondary obligation), whereas in the civil law tradition, it might conceivably take the shape of an action for specific performance of the obligation (i.e., dualist conception). See Part I.B above.

(111) See art. 2342 C.C.Q.

(112) See art. 543ff. C.C.P.

(113) One finds this interesting passage by Beaumanoir, writing in the thirteenth century: If a surety is summoned for his obligation so that an order is issued before he dies, his heir must take on the obligation; for as soon as he has received an order to meet his obligation, he is the debtor for the thing. But if he dies before he has been taken to court and an order issued, the heirs are not in any way obligated, for they need not meet the obligation of their father if the father did not assume the debt or receive an order to pay (Philippe de Remi Beaumanoir, The Coutumes de Beauvaisis of Philippe de Beaumanoir, trans. by F.R.P. Akehurst (Philadelphia: University of Pennsylvania Press The University of Pennsylvania Press (or Penn Press) was originally incorporated with the Commonwealth of Pennsylvania on 26 March 1890, and the imprint of the University of Pennsylvania Press first appeared on publications in the closing decade of the nineteenth , 1992) at c. 43, para. 1311.

Compare National Bank of Canada Bank of Canada

Canada's central bank, established under the Bank of Canada Act (1934). It was founded during the Great Depression to regulate credit and currency. The Bank acts as the Canadian government's fiscal agent and has the sole right to issue paper money.
 v. Soucisse, [1981] 2 S.C.R. 339, 43 N.R. 283, aff'g [1976] C.A. 137 (Qc. C.A.) [Soucisse]; arts. 2361, 2364 C.C.Q.; Caissepopulaire Desjardins de la Vallee de l'Or c. Dion, [2001] R.J.Q. 2619 (Sup. Ct.); Maritime compagnie d'assurance-vie c. 132809 Canada (19 October 1997), Montreal 500-17-000035-975, J.E. 97-1945 (Qc. Sup. Ct.).

(114) See art. 1951 C.C.L.C, which was not reproduced in the Code. However, the rule continues to apply: Schwitzguebel c. Cadieux (25 February 2002), Montreal 500-05-013886-922, J.E. 2002-499 (C.A.); Garantie compagnie d'assurances c. Vortek groupe conseil, [2005] R.J.Q. 1475 (Sup. Ct.) [Vortek].

(115) Art. 1536 C.C.Q.

(116) The duty to inform, as articulated by the Supreme Court of Canada, arises where one party has information that is of decisive importance to the other party, for whom it is impossible to obtain such information. The duty also arises even if it is not impossible for a party to obtain the relevant information but where he reasonably relies on the other to provide it. See Bank of Montreal “BMO” redirects here. For the mathematics competition, see British Mathematical Olympiad.
Bank of Montreal/Banque de Montréal (TSX: BMO, NYSE: BMO) is Canada's fourth largest bank[1], and is classified as a Domestic Chartered Bank (Schedule I).
 v. Bail Ltee, [1992] 2 S.C.R. 554, 93 D.L.R. (4th) 490 [Bail cited to S.C.R.].

(117) In the specific context of suretyship, the creditor has a duty to provide "any useful in formation respecting the content and the terms and conditions of the principal obligation and the progress made in its performance" (art. 2345 C.C.Q.). However, such duty appears to exist only "at the request of the surety" (ibid.). Fortunately, the courts have maintained that the creditor continues to be bound by a more general duty to inform the surety at the creditor's own initiative, in accordance with the criteria set out in Bail (supra note 116). Art. 2345 C.C.Q. must not be interpreted in such a way as to restrict the general duty to inform incumbent on all contracting parties as derived from good faith. See arts. 7, 1375 C.C.Q.; Trust La Laurentienne du Canada c. Losier (15 January 2001), Montreal 500-09-007838-998, J.E. 2001-254 (C.A.) [Losier].

(118) See art. 2344 C.C.Q. Compare art. 2343 C.C.Q. ("A suretyship may not be extended beyond the limits for which it was contracted"). In some cases, the surety's responsibility is explicitly or implicitly limited to the amount of the debt and conditions for reimbursement Reimbursement

Payment made to someone for out-of-pocket expenses has incurred.
 as they stood at the time the suretyship was obtained. See e.g. Federation des Caisses Desjardins du Quebec c. Langlois, 2008 QCCQ 7214. See also Louise Poudrier-LeBel & Andre Belanger, "L'interpretation du cautionnement : une approche nouvelle quant a la formation et a la determination du contenu du contrat" (2000) 41 C. de D. 323 at 336-38.

(119) See Entreprises Roof-mart (Quebec) ltee c. Filiatreault, succession (1999), AZ-99026441, B.E. 99BE-906, EYB EYB Effective Year Built (real estate appraisal)
EYB Encarta Encyclopedia Yearbook
 1999-13303 (C.S.) (AZ) [Filiatreault].

(120) See art. 2359 C.C.Q.

(121) See art. 2362 C.C.Q.

(122) See e.g. Losier, supra note 117.

(123) Promotions Atlantiques inc. c. Banque de Nouvelle-Ecosse (2003), J.E. 2003-1738 (C.A.); Fiducie du Groupe Investors Itee c. Guida, [2001] R.J.Q. 84 (C.A.); Filiatreault, supra note 119. For a critical evaluation and proposals for change, see Louise Langevin, "L'obligation de renseignement, le cautionnement et les dettes transmises sexuellement" (2005) 50 McGill L.J. 1. See also Andre Belanger & Ghislain Tabi Tabi, "Vers un repli de l'individualisme contractuel? : l'exemple du cautionnement" (2006) 47 C. de D. 429.

(124) The leading case on fins de non-recevoir is the Supreme Court of Canada's decision in Soucisse (supra note 113). The heirs to a succession did not know that the deceased had provided a suretyship to his bank in order to secure the present and future debts of a friend of the deceased. Had they known this, the heirs could easily have revoked the suretyship, thus avoiding liability for subsequent debts. The court found that the bank had violated its duty of good faith in not informing the heirs of the existence of the suretyship. It therefore dismissed the bank's action against them with respect to subsequent debts. For an early and excessively broad statement of the extent and consequences of the creditor's duty to inform the surety, see Cloutier v. Dumas, [1954] B.R. 720 at 724:
   It is the clearest and evident equity not to carry on any
   transaction without the knowledge of the surety, who was
   necessarily concerned in every transaction with the principal
   debtor. If a change is made without the knowledge of the surety he
   will be discharged. If, however, without inquiry, it is evident
   that the change is unsubstantial or is beneficial to the surety, he
   will not be discharged.

(125) See Oury-Brule, supra note 78 at paras. 29, 50.

(126) The Quebec Court of Appeal The Court of Appeal of Quebec (in French: la Cour d'appel du Québec) is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal. The quorum of the Court of Appeal of Quebec is three judges.  entertained the possibility of imposing a duty to inform in the context of a solidary obligation in the case of Lacharite c. Caisse populaire NotreDame de Bellerive, but finally rejected the argument based on the facts of the case (2005 QCCA QCCA Quasiclassical Close-Coupling Approximation  577, [2005] R.J.Q. 1408). The court noted the resemblance Resemblance may refer to:
  • Resemblance: as in "you have a resemblance to your brother" (In the case of twins) see analogy and similarity.
  • Resemblance nominalism
  • Ludwig Wittgenstein's family resemblances.
 between suretyship and solidarity, and hypothesized that one might be just as likely to find a duty to inform in a solidary obligation, as one might in a suretyship (ibid. at paras. 45-46). In expressing this view, the court does not appear to have considered the differences between the two institutions exposed in this section.

(127) Art. 1518 C.C.Q.

(128) Art. 1523 C.C.Q.

(129) Paquette c. 151082 Canada (13 December 1999), Montreal 500-05-017841-931, J.E. 2000-187 (C.S.). See also W.T Rawleigh Co. v. Dumoulin, [1926] S.C.R. 551, [1926] 4 D.L.R. 141.

(130) See Huiles M.R.G. Drouin inc. c. Fortier (25 August 2000), Beauce (Saint-Joseph-deBeauce) 350-22-000216-989, J.E. 2000-1945 (C.Q.).

(131) In such cases, the clause is frequently declared to be invalid if the debtor's representative was unaware of its presence within the loan or credit agreement. See Carquest Canada c. Boulianne, 2008 QCCQ 142 (C.Q. civ. (div. pet. cre.)); Video L.P.S.c. 90130451 Quebec (22 November 1996), Montreal 500-05-017485-960, J.E. 97-343 (C.S.) (AZ); Boiseries Raymond c. 2848-4475 Quebec (18 February 1997), Montreal 500-02-017307948, B.E. 97BE-233 (C.Q. civ.); Distribution Denbec c. Gendron (1 June 2000), SaintJerome 700-22-001097-970, B.E. 2000BE-858 (C.Q. civ.); Bonneville Portes et fenetres c. Constructions J.S.M. Ouellet inc. (29 March 2001), Quebec 200-22-006769-988, J.E. 2001-837 (C.Q. civ.); Materiaux Decoren c. Bannwarth (17 April 2001), Beauce (Saint-Joseph-de-Beauce) 350-02-000078-993, B.E. 2001BE-509 (C.Q. civ.).

(132) According to Pothier,
   [a]lthough [suretyship] may be made by letter, or even verbally,
   nevertheless, great attention must be paid not to regard what a
   person says or writes as such an engagement, unless the intention
   of becoming surety be clearly expressed; therefore if I have told
   you, or written to you by letter, that a man who wished to borrow
   money from you was solvent, that cannot be taken for an engagement
   as surety; for in this case I might have had no other intention
   than to intimate to you what I thought, and not to oblige myself
   (supra note 28 at para. 401).

(133) In early Roman law, where an award in damages had a punitive as well as a compensatory function, the plaintiff could obtain cumulative payments from each defendant. This rule was abandoned once the compensatory nature of damages came to prevail. See Ernst J. Cohn, "Responsibility of Joint Wrongdoers in Continental Laws" (1935) 51 Law Q. Rev. 468 at 471. See also Mignot, supra note 23 at paras. 312, 241-42.

(134) See arts. 1480, 1526 C.C.Q. In 1804, the drafters of the Code civil des Francais did not think to include a provision stating that joint wrongdoers are solidarily liable to the victim (Cohn, supra note 133 at 478), while later codifications remedied this omission omission n. 1) failure to perform an act agreed to, where there is a duty to an individual or the public to act (including omitting to take care) or is required by law. Such an omission may give rise to a lawsuit in the same way as a negligent or improper act.  (art. 1106 C.C.L.C.). In French law, the courts originally declared joint wrongdoers solidarily liable, but eventually resorted to the obligation in solidum, which represents the state of the law today. In Quebec, the obligation in solidum is applied in cases not covered not covered Health care adjective Referring to a procedure, test or other health service to which a policy holder or insurance beneficiary is not entitled under the terms of the policy or payment system–eg, Medicare. Cf Covered.  by arts. 1480 or 1526 C.C.Q., most notably where one wrongdoer is liable by virtue of a contract (art. 1458 C.C.Q.), and the other on the basis of extra-contractual liability (art. 1457 C.C.Q.). See also supra note 11. See generally Pierre Raynaud, "La nature de l'obligation des coauteurs d'un dommage. Obligation 'in solidum' ou solidarite?" in Melanges dedies a Jean Vincent Jean Vincent may refer to:
  • Jean Claude Marie Vincent de Gournay (1712-1759), French economist
  • Jean Vincent (footballer) (born 1930), French footballer
 (Paris: Dalloz, 1981) 317; Francois Chabas, "Remarques sur l'obligation 'in solidum" (1967) 65 R.T.D. civ. 310; Levesque, supra note 51.

(135) One difficulty arising out of this solution is that it becomes necessary for the courts to determine the co-defendants' respective shares in the debt. Several approaches are possible, none of which has been followed consistently. The first is to apportion ap·por·tion  
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" 
 liability according to the seriousness of the fault of each co-defendant (art. 1478 C.C.Q.). A second approach is to apportion liability in equal shares between the co-defendants, which is the default rule provided for solidary obligations (art. 1537 C.C.Q.). A third approach tends to view one co-defendant's liability as supplanting sup·plant  
tr.v. sup·plant·ed, sup·plant·ing, sup·plants
1. To usurp the place of, especially through intrigue or underhanded tactics.

 the other's. See e.g. Dostie, supra note 11; Chartre, supra note 11; Lambert c. Macara, [2004] R.J.Q. 2637 (C.A.); Eclipse Bescom Ltd. c. Soudures d'auteuil inc., [2002] R.J.Q. 855 (C.A.) [Eclipse Bescom]. The latter solution is easy to understand in cases where co-defendants are parties to a contract that attributes the loss to one party (e.g., through an insurance claim), or where it is attributed by law (see e.g. art. 1463 C.C.Q.). It may also be explained in cases where one defendant in particular has been enriched as a result of the plaintiffs loss, as in Chartre (supra note 11) or Dostie (supra note 11). However, in other cases, such as Eclipse Bescom (supra note 135), it is unclear why one co-defendant must ultimately bear the full extent of the plaintiffs loss. In particular, suggestions that the responsibility of one defendant is principal, while the responsibility of the other is secondary or accessory, appear unhelpful and unconvincing un·con·vinc·ing  
Not convincing: gave an unconvincing excuse.


(136) Not all the effects of solidarity are extended to the obligation in solidum. See Jobin, Les obligations, supra note 38 at para. 647; Pineau, Burman & Gaudet, supra note 38 at para. 391; Lluelles & Moore, supra note 41 at para. 2598. See also Vortek, supra note 114.

(137) Levesque, supra note 51.

(138) Ibid.

(139) See Lluelles & Moore, supra note 41 at paras. 2589-90, 2605; Jobin, Les obligations, supra note 38 at para. 649; Jobin, "Resiliation", supra note 89 at 311.

(140) See Jerome FranCois, Droit civil : les suretes personnelles, t. 7, by Christian Larroumet (Paris: Economica, 2004) at para. 79. D.I.M.S. Construction (Trustee of) v. Quebec (A.G.) provides a recent example of the cautious approach of the courts regarding any possible extension of the law of suretyship (2005 SCC 52, [2005] 2 S.C.R. 564, 258 D.L.R. (4th) 213 [D.I.M.S. Construction]). According to the court, "[t]his cannot be a true case of suretyship, since a warrantor under the AIAOD has no choice in taking on the obligation, whereas consent is an essential aspect of suretyship, which is by definition a contract. The Quebec Superior Court Quebec Superior Court is the highest trial Court in the Province of Quebec, Canada. It consists of 144 judges who are appointed by the federal government following the recommendation of the Premier of Quebec.  judge's statement of the law to the effect that s. 316 AIAOD establishes a legal suretyship is therefore wrong" (ibid. at para. 21 [reference omitted]). While the court was correct in finding that there was no legal suretyship in this case, it should have considered more carefully the possibility of referring to suretyship by analogy in appropriate cases, even in the absence of a contract. As will be seen below, however, this would not have been an appropriate case.

(141) See Barbe c. Ellard (1906), 15 B.R. 526 (C.S.).

(142) See Toronto Dominion Bank c. Coronet Sportswear & Clothing Mfg. Ltd., [1980] C.A. 386. See also Fonds d'indemnisation des victimes d'accidents d'automobile c. Deblois, [1975] C.A. 262.

(143) See Jacob, supra note 76. "Il faut comprendre que, meme quand le cautionnement est solidaire, l'intervention de la caution n'est jamais un moyen de paiement, mais le moyen de procurer un surcroit de securite' (ibid. at para. 57 [reference omitted]).

(144) See supra note 138.

(145) R.S.Q.c. A-3.001.

(146) See D.I.M.S. Construction, supra note 140 at para. 2.

(147) Ibid. at para. 21 [references omitted].

(148) See Preliminary Provision, C.C.Q.

(149) D.I.M.S. Construction, supra note 140 at para. 21.

(150) See art. 1525 C.C.Q.

(151) See Michael Wilhelmson, "The Nature of the Quebec Partnership: Moral Person, Organized Indivision or Autonomous Patrimony PATRIMONY. Patrimony is sometimes understood to mean all kinds of property but its more limited signification, includes only such estate, as has descended in the same family and in a still more confined sense, it is only that which has descended or been devised in a direct line from the ?" (1992) 37 McGill L.J. 995 at 1014-18. For another example, see art. 1078 C.C.Q., which concerns the responsibility of co-owners for debts of the syndicate of co-owners.

(152) Art. 2221 C.C.Q.

(153) See art. 2225 C.C.Q.

(154) See art. 2219 C.C.Q.

(155) Art. 2221 C.C.Q.

(156) See art. 2349ff. C.C.Q.

(157) See art. 2353 C.C.Q.

(158) See Duval-Hesler c. Lalande (1996), AZ-97031007, J.E. 97-8 (C.Q.) (AZ); Roy c. Boivin Carrier, 2006 QCCS 2663.

(159) See Banque Nationale du Canada c. Quebec (P.G.) (1994), AZ-95021136, J.E. 95-372 (C.S.) (AZ) (a suretyship agreement provided for a reinforced benefit of discussion, which did not disqualify To deprive of eligibility or render unfit; to disable or incapacitate.

To be disqualified is to be stripped of legal capacity. A wife would be disqualified as a juror in her husband's trial for murder due to the nature of their relationship.
 it as a suretyship agreement).

(160) See Pineau, Burman & Gaudet, supra note 38 at para. 395.

(161) See Dawson c. King, [1982] C.P. 97.

(162) This section begins with a summary of the argument presented in my previous article (Cumyn, supra note 1). The reader should refer to that article for a more detailed discussion and for additional references. See also Benoit Moore, "De la delegation certaine a la delegation incertaine : error communis facit jus et ... legem" (2004) 38 R.J.T. 475; Jobin, Les obligations, supra note 38 at para. 1011ff.; Lluelles & Moore, supra note 41 at para. 3121ff.; Vincent Karim, Les obligations, vol. 2, 3d ed. (Montreal: Wilson & Larleur, 2009) at 1093-96; Maurice Tancelin, Des obligations en droit mixte du Quebec, 7th ed. (Montreal: Wilson & Lafleur, 2009) at para. 1318.1.

(163) See art. 1173 C.C.L.C.

(164) See art. 1667ff. C.C.Q.

(165) See art. 1555 C.C.Q.

(166) See art. 1668 C.C.Q.

(167) For an illustration of such a situation, see Groupe C.S.L.c. Quebec (Sous-ministre du Revenu), [2002] R.D.F.Q. 52 (C.A.). A group of related corporations wished to transfer a debt from one member of the group to another. The debt was a loan by the Royal Bank of Canada whose terms were favourable to the group since there had been a subsequent rise in interest rates. The group decided not to run the risk of transferring the debt because the bank had declared its opposition to the transfer. It was thought best not to risk losing the benefit of the loan (ibid. at para. 15).

(168) See art. 1392 C.C.Q.

(169) See art. 1390 C.C.Q.

(170) See art. 1670 C.C.Q.

(171) See e.g. Salvatore L. Briqueteur inc. c. Banque nationale du Canada, [2002] R.J.Q. 1895 (C.A.) [Salvatore].

(172) Compare arts. 1670 and 1663 C.C.Q.

(173) See art. 1668 C.C.Q.

(174) Contra Lacasse c. Poulin, [1953] B.R. 125 at 129 (C.A.).

(175) Note that this rule would apply only if the debt was for an indeterminate That which is uncertain or not particularly designated.

INDETERMINATE. That which is uncertain or not particularly designated; as, if I sell you one hundred bushels of wheat, without stating what wheat. 1 Bouv. Inst. n. 950.
 amount or if there was delegation of a future debt.

(176) See e.g. Salvatore, supra note 171 at 1902-1903; Caisse populaire Desjardins Domaine St-Sulpice c. 2425-0771 Quebec (1997), AZ-98021170, J.E. 98-392 (C.S.) (AZ); Banque nationale du Canada c. Portelance, [1997] R.R.A. 1119 (summary), J.E. 97-1713 (C.S.); Banque Nationale du Canada c. Hogue, succession (1999), AZ-99026093 (C.S.) (AZ).

(177) See Allison v. McDonald (1894), 23 S.C.R. 635. See also Williams, supra note 42:
   Where co-promisors agree between themselves that one shall only be
   liable as surety for the others, the arrangement operates not only
   between them but also as against the creditor the moment he
   receives notice of it. Special modes of discharge under the law of
   suretyship will then come into operation (ibid. at 29-30).

   [t]he foregoing rules as to suretyship do not apply to ordinary
   joint or joint and several liability. Notwithstanding the right of
   contribution, which makes each joint debtor a quasi-surety for the
   others to the extent of his right of contribution, he is not
   accorded the special position of a surety in respect of such rules
   as that concerning the giving of time (ibid. at 151).

See also O'Donnovan & Phillips, supra note 59 at paras. 1-30.

(178) See art. 1668 C.C.Q.

(179) Art. 1637 C.C.Q

(180) Maurice Tancelin rightly underlines some of the policy implications of facilitating the transfer of obligations : "L'avenir dira si cette 'mouvance nouvelle' en matiere de "diversi fication des formules de financement' n'est pas une des bases de la gigantesque gi·gan·tesque  
Of enormous size or magnitude; huge.

[French, from Italian gigantesco, from gigante, giant, from Latin gig
 escroque rie du papier commercial adosse a des creances douteuses, qui a declenche la crise de 2008" (supra note 162 at para. 1318.1 [reference omitted]). Note that the movements he describes illustrate the assignment of claims, not delegation. The fact remains that the civil law has not held back such innovations. Yet ignoring their very existence does not provide the parties with the legal protection they require.

Michelle Cumyn, Professor, Faculty of Law, Universite Laval. The research for this article was funded by the National Program for the Integration of Both Official Languages in the Administration of Justice (PAJLO). The author is grateful for the research assistance of Sarah Tanguay, Alain Parent, and Guillaume Talbot-Lachance, all former undergraduate students at Universite Laval, Faculty of Law. She is especially grateful to Frederic Levesque and Alain Parent for their thoughtful comments on an earlier draft.
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Title Annotation:Quebec
Author:Cumyn, Michelle
Publication:McGill Law Journal
Date:Jul 1, 2010
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