surety

Definition of surety

Noun

surety (countable and uncountable; plural sureties)

1. certainty
2. (law) a promise to pay a sum of money in the event that another person fails to fulfill an obligation
3. (law) One who undertakes to pay money or perform other acts in the event that his principal fails therein.

See also

• surcharge
• surcharged
• indorsement

Further reading

A surety is a person (or company) who agrees to be responsible for the debt or obligation of another. Furthermore, a surety is also a "security against loss or damage or for the fulfillment of an obligation, the payment of a debt, etc.; a pledge, guaranty, or bond."

The situation in which a surety is most typically required is when the ability of the primary obligor or principal to perform its obligations under a contract is in question, or when there is some public or private interest which requires protection from the consequences of the principal's default or delinquency. In most common law jurisdictions, a contract of suretyship is subject to the statute of frauds (or its equivalent local laws) and is only enforceable if recorded in writing and signed by the surety and the principal.

If the surety is required to pay or perform due to the principal's failure to do so, the law will usually give the surety a right of subrogation, allowing the surety to "step into the shoes of" the principal and use his (the surety's) contractual rights to recover the cost of making payment or performing on the principal's behalf, even in the absence of an express agreement to that effect between the surety and the principal.

The act of becoming a surety is also called a guarantee. Traditionally a guarantee was distinguished from a surety in that the surety's liability was joint and primary with the principal, whereas the guaranty's liability was ancillary and derivative, but many jurisdictions have abolished this distinction.

In the United States, under Article 3 of the Uniform Commercial Code, a person who signs a negotiable instrument as a surety is termed an accommodation party; such a party may be able to assert defenses to the enforcement of an instrument not available to the maker of the instrument.

Usage

There are several uses of the word "guarantee" in today's parlance, however the following should be used in legal documents. Guaranty is the actual document containing language of assurance. Guarantor is the entity giving the guaranty and guarantee is the entity receiving the guaranty. Following conventional English spelling rules, therefore, the plural of guaranty or verb usage of the word should be guaranties, as in "The seller (guarantor) guaranties something to the buyer (guarantee)."