Everything about bail and bail bonds
Bail can be set to amounts that can be quite expensive, this is why a defendant may want to seek the help of a surety bond companies, which are published on lions bail bonds, and they are a kind of lender that deals with payments needed to release people from jail.
Conventional, legal and judicial
This distinction is established in article 1823 of the Civil Code “the bond can be conventional, legal or judicial”.
The conventional will be that which is stipulated by legal business between the subjects of the same (creditor and guarantor).
The legal bond is one that is determined expressly by legal provision.
The court is imposed by the courts in the cases that are expressly established in the laws of procedure.
However, in many cases, the bonds, both legal and judicial, are in the wrong sense, as already seen in articles 261, 491 and others of the Civil Code, assurance of Article 641.2 of the Law on Prosecution Civil, etc.
For the rest, the Civil Code, in cases where a guarantor must be present, in Article 1854, provides that “the guarantor that must be granted by law or judicial order, must have the qualifications prescribed in article 1828 “, that is, must present a person who has the capacity to be bound and sufficient assets to respond to the obligation that guarantees. Although Article 1855 establishes “if the party liable to give bail in the cases of the previous article does not find it, a pledge or mortgage that is considered sufficient to cover his obligation will be admitted in his place”.
An important characteristic is established, due to its special hardness, in relation to judicial bail, when establishing Article 1856 of the Civil Code “the judicial guarantor cannot request the exclusion of assets from the main debtor. In this case, he can not ask for either the debtors or the guarantors. “
Ordinary and solidary
It is the classification that has more importance in practice, both refers to Article 1822 of the Civil Code, in the first are the ordinary requirements, while in solidarity, as established in the second paragraph “if the guarantor is obliged jointly and severally with the principal debtor, the provisions of section four, chapter III, title I of this book shall be observed “, that is to say, reference is made to the provisions of joint and several obligations ( articles 1137 to 1148 of the Civil Code ), with the details examined previously in terms of external and internal relations.
Limited or unlimited
The bond, under the Civil Code, may be limited and unlimited or indefinite. The limited will comprise only the main obligation, the unlimited will include not only the principal but also all its accessories, including the expenses of the trial, although with respect to these the article 1827 second paragraph provides “that it will answer only those that have accrued after the guarantor has been required for payment “.
Free or expensive
The distinction derives from Article 1823 of the Civil Code in establishing that the bond may be free or for consideration. In turn, the precept itself distinguishes between simple and double bond or subfianza, because it provides “may also be constituted not only in favor of the principal debtor, but the other guarantor, consenting, ignoring and even contradicting it. “
What is the bond?
As for the bail contract in the Civil Code is regulated in Title XIV of Book IV and is defined in Article 1822 first paragraph “by the bond one is obliged to pay or meet by a third party, in the case of not doing so “.
Consequently, by the bail contract a party (guarantor) assumes the obligation contracted by a third party against the creditor, in case the third party does not do so.
From the given definition the following consequences must be followed:
- 1. The guarantor contracts a debt, so it differs from the pledge, because in it is made to fall on the thing the responsibility of compliance with the obligation, the bail bondsman is a true liable, and not a mere liable for another’s debt.
- 2. The bond creates an autonomous obligation of the guarantor against the creditor, although this does not imply that the guarantor assumes the main obligation or is a co-participant in it, although it is an obligation dependent on the principal.
- 3. The bond is a contract between the guarantor and the creditor, with respect to which the debtor is a third party.
- 4. Subsidiarity.
How is it constituted?
The essential personal elements of the bail contract are the creditor of the principal obligation and the guarantor, which is obligated against the former, because it is not necessary for the debtor to intervene, since it can be constituted by consenting, ignoring and even contradicting the debtor.
However, in turn, may be set up intervening the three (creditor, guarantor and debtor) and may even be constituted between the guarantor and the debtor, between the guarantor and a third party, in the latter case, to be established in favor of the creditor, and not intervene this, it will be a contract in favor of a third party.
These refer both to the obligations that can be guaranteed with personal security, and to the scope of the guarantor’s obligation.
Regarding the obligation, as provided in Article 1824 of the Civil Code “the bond can not exist without a valid obligation.” However, it can fall on an obligation whose nullity can be claimed by virtue of a purely personal exception of the obligor, as that of the younger age, except for the provision of the previous paragraph, the case of a loan made to the family child “.
The general bond does not require a specific form, so it governs the principle of freedom of form of Article 1278 of the Civil Code, although if it exceeds the limit of Article 1280 last paragraph, either party may require the other formalization in writing.
What effects does it produce?
Relations between creditor and guarantor
Apart from the obligation of the guarantor to comply with the guaranteed obligation when the debtor fails to comply, in the creditor-guarantor relations, the so-called collection claim, the opposable exceptions, and the benefits of excuse and division must be studied.
Pursuant to article 1834 of the Civil Code, “the creditor may summon the guarantor when he demands the principal debtor, but the benefit of an excusal will always be safe, even if a judgment is given against both. “
Pursuant to Article 1853 of the Civil Code “the guarantor can oppose to the creditor all the exceptions that are due to the principal debtor and are inherent to the debt, but not those that are purely personal of the debtor”. Therefore, it may oppose all the exceptions related to the existence, legitimacy, validity, and extinction of the obligation, but not the exceptions that are personal of the debtor.
The guarantor can not be compelled to pay the creditor without first making an excuse for all the assets of the debtor ( article 1830 of the Civil Code ), although this benefit may be waived by the guarantor.
Therefore, article 1831 of the Civil Code provides “the excuse does not take place:
- 1. When the guarantor has expressly renounced it.
- 2. When it has been jointly and severally liable with the debtor.
- 3. In the case of bankruptcy or bankruptcy of the debtor.
- 4. When he cannot be sued judicially within the Kingdom. “
The guarantors cannot rely on the benefit of excuses for judicial bail.
The requirements to exercise the benefit of exclusion are established in Article 1832 of the Civil Code to provide “so that the guarantor can take advantage of the benefit of the excuse, must oppose it to the creditor after it requires payment, and point out assets of the debtor realizable within the Spanish territory, which are sufficient to cover the amount of the debt “.
The benefit of division is budgeted for the existence of several guarantors in relation to the same debt, provided that solidarity has not been agreed between them. This is derived from Article 1837 of the Civil Code to provide “being several guarantors of the same debtor and the same debt, the obligation to respond to it is divided among all.” The creditor can not claim each guarantor but the party that it is appropriate to satisfy, unless solidarity has been expressly stipulated.The benefit of division against the co-founders ceases in the same cases and for the same causes as the one of excuse against the principal debtor “.
Relations between the guarantor and the debtor
In this regard, in accordance with the rules of the Civil Code, it must distinguish between the effects before the payment made by the guarantor and the subsequent effects.
Effects prior to the payment made by the guarantor
In this regard, article 1843 of the Civil Code establishes “the guarantor, even before having paid, can proceed against the principal debtor:
- 1. When you are sued judicially for payment.
- 2. In case of bankruptcy, bankruptcy or insolvency.
- 3. When the debtor has been forced to relieve him of the bond within a certain period, and this term has expired.
- 4. When the debt has become enforceable, for having fulfilled the term in which it must be satisfied.
- 5. After ten years, when the principal obligation has no fixed term for its expiration, unless it is of such a nature that it can not be extinguished except in a term greater than ten years. “
In all these cases, the action of the guarantor tends to obtain relief from the bond or a guarantee that covers the creditor’s procedures and the insolvency risk in the debtor.
Effects derived from the payment made by the guarantor
The guarantor who pays the debt becomes creditor of the principal debtor, which entails a reimbursement action or a subrogation in the payment.
To this end, in relation to the reimbursement action, article 1838 of the Civil Code provides that “the guarantor who pays for the debtor must be compensated by the latter.
- 1. The total amount of the debt.
- 2. The legal interests of her since the payment to the debtor has been made known, even if it did not produce them for the creditor.
- 3. Expenses incurred by the guarantor after it has been made known to the debtor that has been required for payment.
- 4. Damages, when appropriate. “
The provision of this article takes place although the bond has been given ignoring the debtor.
Regarding subrogation in payment, which is only a specific application of subrogation for the purposes of article 1210.3 of the Civil Code, article 1839 establishes ” the guarantor is subrogated for payment in all the rights that the creditor had against If the debtor has compromised with the creditor, he can not ask the debtor more than he has actually paid. ” This last section tries to avoid unjust enrichment, because if it has compromised by a smaller amount, it can not demand afterwards the amount agreed upon to the debtor.
Regarding the guarantor
The guarantor’s main obligation is to fulfill the guaranteed obligation, in the event that the debtor does not do so, with the character of subsidiarity already examined, although it can be constituted as joint ( article 1822 of the Civil Code ).
The obligation of the guarantor is identical to that of the debtor, as is derived from articles 1826 and 1827 of the Civil Code already examined.
Effects between coaters
If the payment is made by one of the co-owners, the latter has reimbursement action against the others. This is derived from Article 1844 of the Civil Code to establish “when two or more guarantors of the same debtor and for the same debt, which has been paid by them may claim from each other the part proportionally corresponding to If any of them becomes insolvent, the part of the same will fall on everyone in the same proportion, so that the disposition of this article can take place, it is necessary that the payment has been made by virtue of judicial demand, or the debtor is found principal in bankruptcy or bankruptcy status “. The references to the bankruptcy or contest must be understood to the contest for the purposes of Law 22/2003 of July 9, Bankruptcy.
When is it extinguished?
With regard to the termination of the bond, it is necessary to distinguish the causes of extinction derived from the bond being an accessory contract of the obligation it guarantees, and those that derive from being, in turn, an autonomous and independent source of obligations.
Due to the extinction of the guaranteed obligation
It derives from the accessory nature of the obligation of the guarantor, hence Article 1847 of the Civil Code provides “the obligation of the guarantor is extinguished at the same time as that of the debtor” ; consequently, if the obligation of the debtor is extinguished by any of the causes established in article 1156 of the Civil Code, this will entail the extinction of the bond, which is highlighted in the aforementioned precept “and for the same reasons as the other obligations. “
In this way, if the debtor pays the debt to the creditor, the bond has no reason to be, so it is extinguished.
Independent termination of bail
The termination of the bond, regardless of the guaranteed obligation, and still subsisting, derives from Article 1847 of the Civil Code itself, establishing that the bond is extinguished for the same reasons as the other obligations.
Consequently, the bond will be extinguished by any of the causes of extinction of the obligations for the purposes of article 1156 of the Civil Code, provided that they are compatible with the special rules of articles 1848 and following of the Civil Code. Finally, in the Civil Code special cases of extinction are considered:
- 1. The extension granted to the debtor by the creditor without the consent of the guarantor extinguishes the bond ( article 1851 of the Civil Code ).
- 2. The guarantors, even if they are jointly and severally liable, are free of their obligation provided that for some fact of the creditor can not be subrogated in the rights, mortgages and privileges thereof ( Article 1852 of the Civil Code).
Finally, with regard to opposable exceptions, article 1853 provides that “the guarantor may oppose to the creditor all the exceptions that are due to the principal debtor and are inherent to the debt, but not those that are purely personal of the debtor”.