Drawing a distinction between liability as a surety and liability as surety and co–principal debtor

A Person binding himself as surety may in addition bind himself as co-principal debtor. But in the absence of an express undertaking to bind himself as the latter, one would need to look at the language of the suretyship and the circumstances surrounding same to ascertain whether he binds himself as both.

However what is the significance of this distinction?

  1. One who has bound himself as surety and co-principal debtor, is as far as the creditor is concerned a surety who has undertaken the obligations of co – debtor ,meaning his obligations are co equal in extent with those of the principal debtor and of the same scope and nature, stated differently he is liable with the debtor jointly and severally and the obligation of the surety and co- principal debtor becomes enforceable at the same time as that of the principal debtor not later or conditional upon the happening only of an event.
  2. Once a surety and co-principal debtor, he is not entitled to the benefit of division of the debt between himself and the principal debtor.

Jacqui Smith (LLB)

Legal Advisor

 

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