Connection between Period for Suretyship and Extinctive Prescription

Abstract

Given the differences in the nature of liability between general suretyship and joint and several liability suretyship, these two forms of guaranty should be distinguished in terms of the duration of the suretyship and the commencement time of the prescriptive period for suretyship obligation. It is essential to maintain the independence of the duration of the suretyship and the prescriptive period for the liability under the suretyship. The current legal approach of directly linking these two is, however, unreasonable. The extinction of the defence of prior discussion does not necessarily represent the commencement of the prescriptive period. For general suretyship, the commencement of the prescriptive period is relatively ambiguous. The commencement of the prescriptive period can be affected by a number of factors, including the principal debtor losing the ability to perform, anticipatory breach, the creditor failing to apply for execution after obtaining a judgment, anticipatory breach by the surety, and long-term suretyship agreed upon between the creditor and the surety. These factors should be analysed on a case-by-case basis. In addition, the commencement of the prescriptive period for joint and several liability suretyship should be independent of the prescriptive period for the principal debt. Joint and several liability suretyship are fundamentally distinct from debt assumption. The impact on the commencement of the prescriptive period for suretyship obligation should also be analysed separately in cases of anticipatory breach by the principal debtor and the surety.