Some peculiarities of legal relationship arising out of a surety contract

The obligation existing on the moment of the conclusion of a surety contract and any future obligation (in case of its proper identification) can be secured by surety. A surety contract securing any future obligation has the feature of accessority, because it derives from the given obligation, complements it and depends on it. One of the features of a securing surety legal relationship is that its emergence is not connected with wrongdoing of a guarantor (a debtor in a surety contract). Wrongdoing is a violation of a secured obligation by a debtor but a guarantor does not take part in it and cannot influence the performance of this obligation so his behavior is not a wrongdoing. But a person is a wrongdoer if he/she violates normative injunctions, legal imperative prescriptions, conditions of a transaction, court decisions which impose injunctions, prescriptions or obligations, claims (obligations) ascertained by another legal fact. The obligation of a guarantor is his voluntarily expressed agreement "to be responsible". This feature influences the grounds (set of legal facts) and emergence conditions of the above obligation. A guarantor's behavior cannot be characterized as an unlawful one due to the fact that he voluntarily agreed "to be responsible". Civil law does not know anything about such wrongdoing on the part of the subject of civil law. All difficulties in the qualification of the above consequences are connected with the law itself. The author of the article thinks that legislators try to equate civil legal liability with the consequences of violation of a secured obligation by a debtor and performance of an obligation by a guarantor. Such equating can be explained by the lack of a profound theoretical substantiation of the legal nature of the consequences of violation of an obligation by a debtor for the person who in not involved in a secured obligation and, thus, cannot influence its performance.

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