THE EVOLUTION OF SURETYSHIP IN ROMAN AND RUSSIAN LAW OF OBLIGATIONS

Abstract

Introduction. The authors analyzes the historical development of the suretyship in the law of Ancient Rome and Russia. It is generally accepted that traditional private law institutions, which are also means of securing obligations, penetrated into Russian law through double reception – after their development in German and French law. Meanwhile, the suretyship was not created by Roman lawyers from scratch, it replaced the barbaric ways of securing the interests of the creditor based on hostage, debt bondage and others. The same methods evolved in ancient Russian law into an independent institution of bail. Purpose. The purpose of this study is to generalize and systematize knowledge about the historical development of the institution of suretyship in Roman private law and Russian law. Despite a long evolution, in modern Russian law the suretyship loses its accessory features that have been formed for more than two millennia, and acquires signs of abstractness. In this regard, it is important to determine the constitutive features of the legal relationship of surety to identify the trajectory of the subsequent development of the institution of personal securing of obligations. Methodology. In carrying out this study, general scientific and private law methods were used, including the system-structural method, methods of functional and historical-legal analysis. Results. Personal security of civil obligations arose in the legal space from the artificial creation of a correal plurality on the side of the debtor, which quickly outlived itself in view of the impossibility of achieving the goal of security – the proper guaranteeing effect for the lender. With the development of private law in Rome, the evolution of the institution of suretyship is visible – from the verbal forms of confirmation of third party debt and sureties for it, implemented by citizens in the form of sponsio, to the late form of fideiussor’s financial responsibility, tending to the modern model of guarantee. Russian suretyship develops from the universal institute of bail, mentioned even in the sources of law of the princely period. The bail was applied in all kinds of, not only private law relations, and was used as a general basis for third party liability. With the complication of civil relations, bail also develops as a means of personal security of the obligation, and by the beginning of reception of Roman law, the Russian suretyship naturally reached similarities with personal security in the sources of this reception – German and French law of obligations. The Russian suretyship of the XIX century becomes an independent obligation, the parties to which are the creditor and the surety, while the surety is not a co-borrower in the secured obligation and does not fulfill the main obligation as an intercession, the right of claim from the creditor passes to it, and the guarantor's liability, presumed as subsidiary, is realized only in cash. The further development of Russian suretyship, unfortunately, indicates the use of more pro-creditor approaches, which was caused by the unsatisfactory contractual discipline of the parties to civil legal relations. Conclusion. In the process of its evolution, surety remains the most used, and, in fact, the only universal way of personal securing obligations, despite the permanent attempts of scientists and law enforcement to introduce other means into civil relations. Recognizing the special significance of the suretyship, it is important to preserve the traditional constitutive features of this institution.