Civil-law consequences of the surety's performance of an obligation

The subject of the study is the regularities of civil law regulation of public relations arising in the field of restoration of the property status of the surety, who incurred the costs of the provision made in favor of the creditor. The study aims to identify the essence of the civil-law consequences of the fulfillment by the surety of their obligation to the creditor. Taking into account this aim, the following research objectives are set: to characterize the losses of the surety in connection with the fulfillment of the obligation; to identify the models used by the modern legislator to restore the property status of the surety, who incurred the costs of providing services in favor of the creditor; to discover the similarities and differences between the surety agreement and cumulative debt acceptance. The methodological basis of the research consists in the application of general scientific and spacial scientific methods of cognition, including historical, systemic-structural, and formal-legal ones. As a result of the conducted research, the following main conclusions were made. The fulfillment by the surety of an accessory obligation does not release the debtor from the fulfillment of the main obligation, in which the surety, who satisfied the previous creditor, quite logically takes the place of the new creditor. Another matter is the loss of the surety in connection with the performance of the security obligation, in particular, the loss of the opportunity to use the funds paid to the lender, as well as losses (execution costs, lost profits, etc.). They form the scope of responsibility not of the surety for the debtor, but of the debtor to the surety within the framework of protective legal obligations that are not directly related to the main obligation. As a result, in order to restore the financial position of the surety, who incurred the costs of the provision made in favor of the creditor, the modern legislator uses two legal models simultaneously: the surety takes over in the order of singular succession to the place of the creditor in the remaining main obligation («subrogation model»); since the surety is held liable for violation of the principal obligation by the debtor, a recourse obligation arises between the specified parties, the subject of which is the payment to the surety of interest on the amount paid to the creditor and compensation for losses incurred in connection with the specified liability ("regression model"). Despite the legislator's use of the term "debt transfer", the creditor enters into an independent obligation with the cumulative debtor, which differs from the obligation with the original debtor. The obligation of the cumulative debtor is joined to the obligation of the original debtor, which remains in the same form, which brings the guarantee agreement and the cumulative acceptance of the debt closer. Unlike a surety agreement, cumulative debt acceptance generates an obligation that is neither accessory nor conditional. The author declares no conflicts of interests.

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