Surety

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notmartha
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Surety

Post by notmartha » Thu Jul 23, 2015 11:58 am

Surety is, put simply, taking on the burden or liability of someone’s or something’s debts or deeds. Ishmaelites became synonymous with it. Solomon warned against it. Christ became it for us. It is a snare used today, and anytime you see the words "security", "insurance", "fiduciary", "mortgage", "bond", "bail", and/or "pledge" in a contract or agreement, beware of their entanglements.

KJV references:

ʿArab, Hebrew Strong’s #6148, is used 22 times throughout the Old Testament. It is translated as surety (9), meddle (2), mingled (2), pledges (2), becometh (1), engaged (1), intermeddle (1), mortgaged (1), occupiers (1), occupy (1) and undertake (1). Some examples:

Proverbs 6:1-5
“My son, if thou be surety for thy friend, If thou hast stricken thy hand with a stranger, Thou art snared with the words of thy mouth, Thou art taken with the words of thy mouth. Do this now, my son, and deliver thyself, When thou art come into the hand of thy friend; Go, humble thyself, and make sure thy friend. Give not sleep to thine eyes, Nor slumber to thine eyelids. Deliver thyself as a roe from the hand of the fowler.”
Proverbs 11:15
"He that is surety for a stranger shall smart for it: And he that hateth suretiship is sure."
Proverbs 22:26-27
"Be not thou one of them that strike hands, Or of them that are sureties for debts. If thou hast nothing to pay, why should he take away thy bed from under thee?"
ʿArubbâ, Strong’s Hebrew #6161, is used 2 times throughout the Old Testament. It is translated as surety (1), and pledge (1). It is feminine passive participle of #6148 above. An example:

Proverbs 17:18
A man void of understanding striketh hands, and becometh surety in the presence of his friend.
Note: the word ʿArab is also the root of Strong’s Hebrew #6149 through #6164 and is translated as the intermingled race that descended from Ishmael, the son of Abraham and the bondwoman, Hagar.

Engyos, Strong’s Greek # 1450, is used one time in the New Testament. It is translated as surety, meaning pledged or a bondsman. Example:

Hebrews 7:22
By so much was Jesus made a surety of a better testament.
In Galatians 4:21-31 Paul tells this allegory:
"Tell me, ye that desire to be under the law, do ye not hear the law? For it is written, that Abraham had two sons, the one by a bondmaid, the other by a freewoman. But he who was of the bondwoman was born after the flesh; but he of the freewoman was by promise. Which things are an allegory: for these are the two covenants; the one from the mount Sinai, which gendereth to bondage, which is Agar. For this Agar is mount Sinai in Arabia, and answereth to Jerusalem which now is, and is in bondage with her children. But Jerusalem which is above is free, which is the mother of us all. For it is written, Rejoice, thou barren that bearest not; break forth and cry, thou that travailest not: for the desolate hath many more children than she which hath an husband. Now we, brethren, as Isaac was, are the children of promise. But as then he that was born after the flesh persecuted him that was born after the Spirit, even so it is now. Nevertheless what saith the scripture? Cast out the bondwoman and her son: for the son of the bondwoman shall not be heir with the son of the freewoman. So then, brethren, we are not children of the bondwoman, but of the free."
Paul used Hagar and Sarah to explain covenantal surety.

Old Covenant, Covenant of Law, Man as Surety –

Hagar the bondwoman, also called Agar, bore Abraham a son, Ishmael. Ishmael and his descendants were born after the flesh, not of the promise. Mount Sinai was called Agar by the Arabs (descendants of Ishmael), symbolic of their bondage to the Law, sin and death, and they had no share in the promised inheritance. The Ishmaelites make of themselves surety, attempting to work off their sin debt. As a side note, the Ishmaelites often middle manned the pledging of people to be sold into bondage, as with the caravan of Arabs that bought and sold Joseph (Genesis 38-39).

New Covenant, Covenant of Promise, Christ as Surety –

Sarah, a freewoman, bore Abraham a son, Isaac. Isaac and his descendants through Jacob-Israel were born of the promise. Israelites inherited the promise of Christ as their surety. Sarah, in Paul’s allegory, is symbolic of the Church, and as the bride of Christ bears free children who are not subject to the Law, but rather born of grace and faith unto an everlasting inheritance. Christ paid man’s debt of sin, a debt man is incapable of ever paying. He became a surety in the place of another. He suffered Hell so we can miss it.

Easton's Bible Dictionary, 1897
Surety - one who becomes responsible for another. Christ is the surety of the better covenant (Heb. 7:22). In him we have the assurance that all its provisions will be fully and faithfully carried out. Solomon warns against incautiously becoming security for another (Prov. 6:1-5; 11:15; 17:18; 20:16).
Dictionary of the Bible
Surety:
1. A pledge or object in the possession of the debtor handed over to the creditor as a guarantee for his debt.
2. The RSV in one instance and the KJV several times uses this word as an Eng. auxiliary for the emphatic Heb. construction (e.g., Gen 15:13). Elsewhere the OT references are to a person becoming surety for another. In Biblical law, the surety is the person who when the debt matures, “intervenes” (Heb. ’arab), in favor of the insolvent debtor, and assumes responsibility for the payment of the debt, either by obtaining it from the debtor or by substituting himself for him (R. de Vaux, Ancient Israel, 172). The act of intervening was symbolized by “striking the hands,” that is, shaking hands (Job 17:3; Prov 6:1; 11:15; 17:18; 20:16; 22:26; 27:13). One should not accordingly rashly give himself as surety without careful consideration of whether he can responsibly meet the obligation.
3. In the one NT reference (Heb 7:22) Jesus steps in as the “guarantor” of the promises of God made in the New Covenant. With His life, death, resurrection and ascension Jesus has become God’s guarantee that the salvation which was begun for us in Jesus’ deathwill necessarily be followed by its completion (Preisker, TDNT).
From The Words of His Kingdom and the words of the world compared:
When you sign a piece of paper to a name in all capital letters, you stand as surety for that fictitious entity created by the State. Similar to how a man stands as surety for his corporation (meaning, if the corporation does something wrong, the man will go to court and answer to the charges against his corporation). This is what you do when you stand as surety for that fictitious name on that license issued by the State. But the Scripture is clear that we are not to stand as surety (Proverbs 6:1-2; 11:15, Romans 13:8), At 2 Kings 18:23,31, the people refused to stand as surety (pledges) for their king (government). Remember, the courts have jurisdiction over the 'person' (fictitious name, corporation, etc.), but not the 'surety', until the two become one flesh by merging together.


Commentaries on the Laws of England in Four Books, vol. 1 by Sir William Blackstone, 1753
“The general rule is that the contracts of an infant are voidable by him. Oliver vs. Houdlet, 13 Mass. 237. Whitney vs. Dutch, 14 ibid. 457. Yet there are some contracts so clearly prejudicial that they are held to be not merely voidable, but absolutely void. Such is the contract of suretyship.”


Commentaries on the Laws of England in Four Books, vol. 2 by Sir William Blackstone, 1753
“It is now settled that if two persons go to a shop, and one order goods, and the other say, “If he does not pay, I will,” or, “I will see you paid,” he is not bound unless his engagement is reduced into writing. In all such cases the question is who is the buyer, or to whom the credit is given, and who is the surety; and that question, from all the circumstances, must be ascertained by the jury; for if the person for whose use the goods are furnished be liable at all, any promise by a third person to discharge the debt must be in writing, otherwise it is void. 2 T. R. 80. 1 H. Bl. Rep. 120. 1 Bos. & Pul. 158.”
Webster’s Dictionary, 1828
Surety –
1. Certainty
2. Security; safety
3. Foundation of stability; support
4. Evidence; ratification; confirmation
5. Security against loss or damage; security for payment
6. One that is bound with and for another; one who enters into a bond or recognizance to answer for another’s appearance in court, or for his payment of a debtor for the performance of some act, and who, in case of the principal debtor’s failure, is compellable to pay the debt or damages;


Bouvier’s Dictionary of Law, 1856:
SURETY, contracts.
1. A person who binds himself for the payment of a sum of money or for the performance of something else, for another, who is already bound for the same. A surety differs from a guarantor, and the latter cannot be sued until after a suit against the principal. 10 Watts, 258.
2. The surety differs from bail in this, that the latter actually has, or is by law presumed to have, the custody of his principal, while the former has no control over him. The bail may surrender his principal in discharge of his obligation; the surety cannot be discharged by such surrender.
3. In Pennsylvania it has been decided that the creditor is bound to sue the principal when requested by the surety, and the debt is due; and that when proper notice is given by the surety that unless the principal be sued, be will consider himself discharged, he will be so considered, unless the principal be sued. 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30; S. P. in Alabama, 9 Porter, R. 409. But in general a creditor may resort to the surety for the payment of his debt in the first place, without applying to the principal. 1 Watts, 28O; 7 Ham. part 1, 223. Vide Bouv. Inst. Index, h. t.; Contribution; Contracts; Suretyship.
Black’s Law Dictionary, 1st Edition, 1891
Surety Blacks 1.JPG
Surety Blacks 1.JPG (108.45 KiB) Viewed 5183 times

Black’s Law Dictionary, 5th Edition, 1979
Surety –
One who undertakes to pay money or to do any other act in event that his principal fails therein. One bound with his principal for the payment of a sum of money or for the performance of some duty or promise and who is entitled to be indemnified by some one who ought to have paid or performed if payment or performance be enforced against him. Everyone who incurs a liability in person or estate, for the benefit of another, without sharing in the consideration, stands in the position of “surety”.
Miscellaneous Citations

UCC § 1-201. General Definitions.
(39) "Surety" includes a guarantor or other secondary obligor.

Surety is, “One who undertakes to pay money or to do any other act in event that his principal fails therein.” In re Brock, 312 Pa. 92, 166 A. 778, 781.

Surety is, “One bound with his principal for the payment of a sum of money or for the performance of some duty or promise and who is entitled to be indemnified by some one who ought to have paid or performed if payment or performance be enforced against him.” Anderson v. Trueman, 100 Fla. 727, 130 So. 12, 13.

“Everyone who incurs a liability in person estate, for the benefit of another, without sharing in the consideration, stands in the position of a 'surety,' whatever may be the form of the obligation.” Howell v. War Finance Corporation, C.C.A.Ariz., 71 F.2d 237, 243.

"A surety and guarantor have this in common, that they are both bound for another person; yet there are points of difference between them. A surety is usually bound with his principal by the same instrument, executed at the same time and on the same consideration. He is an original promisor and debtor from the beginning, and is held ordinarily to every known default of his principal. On the other hand, the contract of guarantor is his own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal, and is often founded on a separate consideration from that supporting the contract of the principal. The original contract of the principal is not the guarantor's contract, and the guarantor is not bound to take notice of its non-performance. The surety joins in the same promise as his principal and is primarily liable; the guarantor makes a separate and individual promise and is only secondarily liable. His liability is contingent on the default of his principal, and he only becomes absolutely liable when such default takes place and he is notified thereof.” Georgia Casualty Co. v. Dixie Trust & Security Co., 23 Ga.App. 447, 98 S.E. 414, 416; Stifel Estate v. Cella, 220 Mo.App. 657, 291 S.W. 515, 518; Ricketson v. Lizotte, 90 Vt. 286, 98 A. 801.

“'Surety' and 'guarantor' are both answerable for debt, default, or miscarriage of another, but liability of guarantor is, strictly speaking, secondary and collateral, while that of surety is original, primary, and direct. In case of suretyship there is but one contract, and surety is bound by the same agreement which binds his principal, while in the case of guaranty there are two contracts, and guarantor is bound by independent undertaking.” Howell v. Commissioner of Internal Revenue, C.C.A.8, 69 F.2d 447, 450.

"A surety is an insurer of the debt or obligation; a guarantor is an insurer of the solvency of the principal debtor or of his ability to pay.” McClain v. Georgian Co., 17 Ga.App. 648, 87 S.E. 1090; Bishop v. Currie-McGraw Co., 133 Miss. 517, 97 So. 886, 889

"'Almost all who sign as surety,' says Chief Justice Appleton, 'have occasion to remember the proverb of Solomon: 'He that is surety for a stranger shall smart for it, and he that hateth suretyship is sure.' But they are never the less held liable upon their contracts, otherwise there would be no smarting, and the proverb would fail.' [Mayo v. Hutchinson, 57 Maine, p. 547.]" Heard, Curiosities of the Law Reporters (1876), p. 115.

The following are miscellaneous references to surety in Bouvier’s:
BAIL, practice, contracts. By bail is understood sureties, given according to law, to insure the appearance of a party in court. The persons who become surety are called bail. Sometimes the term is applied, with a want of exactness, to the security given by a defendant, in order to obtain a stay of execution, after judgment, in civil cases., Bail is either civil or criminal.

BENEFIT OF DISCUSSION, civil law. The right which a surety has to cause the property of the principal debtor to be applied in satisfaction of the obligation in the first instance. See Civil Code of Lo. art. 3014 to 3020, and Discussion.

COUNTER SECURITY. Security given to one who has become security for another, the condition of which is, that if the one who first became surety shall be damnified, the one who gives the counter security will indemnity him.

DAMNIFICATION. That which causes a loss or damage to a society, or to one who has indemnified another. For example, when a society has entered into an obligation to pay the debt of the principal, and the principal has become bound in a bond to indemnify the surety, the latter has suffered a damnification the moment he becomes liable to be sued for the debt of the principal and it has been held in an action brought by the surety, upon a bond of indemnity, that the terror of suit, so that the surety dare not go about his business, is a damnification. Ow. 19; 2 Chit. R. 487; 1 Saund. 116; 8 East, 593; Cary, 26.

FIDE JUSSIO, civil law. The contract of suretyship.
FIDE JUSSOR, civil law. One who becomes security for the debt of another, promising to pay it in case the principal does not do so.

SECURITY. That which renders a matter sure; an instrument which renders certain the performance of a contract. The term is also sometimes applied to designate a person who becomes the surety for another, or who engages himself for the performance of another's contract. See 3 Blackf. R. 431
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notmartha
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Re: Surety

Post by notmartha » Sat Feb 20, 2016 12:50 pm

The Institutes of Justinian, translated into English by J. B. Moyle, D.C.L., 1913

TITLE XX. OF FIDEJUSSORS OR SURETIES

Very often other persons, called fidejussors or sureties, are bound for the promisor, being taken by promises as additional security.

1 Such sureties may accompany any obligation, whether real, verbal, literal or consensual: and it is immaterial even whether the principal obligation be civil or natural, so that a man may go surety for the obligation of a slave either to a stranger or to his master.

2 A fidejussor is not only bound himself, but his obligation devolves also on his heir

3 and the contract of suretyship may be entered into before no less than after the creation of the principal obligation.

4 If there are several fidejussors to the same obligation, each of them, however many they are, is liable for the whole amount, and the creditor may sue whichever he chooses for the whole; but by the letter of Hadrian he may be compelled to sue for only an aliquot part, determined by the number of sureties who are solvent at the commencement of the action: so that if one of them is insolvent at that time the liability of the rest is proportionately increased. Thus, if one fidejussor pay the whole amount, he alone suffers by the insolvency of the principal debtor; but
this is his own fault, as he might have availed himself of the letter of Hadrian, and required that the claim should be reduced to his rateable portion.

5 Fidejussors cannot be bound for more than their principal, for their obligation is but accessory to the latter's, and the accessory cannot contain more than the principal; but they can be bound for less. Thus, if the principal debtor promised ten aurei, the fidejussor can well be bound for five, but not vice versa; and if the principal's promise is absolute, that of the fidejussor may be conditional, though a conditional promise cannot be absolutely guaranteed, for more and less is to be understood of time as well as of quantity, immediate payment being regarded as more, and future payment as less.

6 For the recovery of anything paid by him for the principal the fidejussor can sue the latter by the action on agency.

7 A fidejussor may be taken in Greek, by using the expressions 'tei emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be taken as equivalent to 'lego.'

8 It is to be observed that in the stipulations of fidejussors the general rule is that whatever is stated in writing to have been done is taken to have really been done; and, accordingly, it is settled law that if a man signs his name to a paper stating that he became a fidejussor, all formalities are presumed to have been duly observed.
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