Notifying a guarantor or surety to pay a debt

The form, signature, identification of the guaranteed obligation, cap, duration and person who bound the guarantor are checked. Suretyship is not presumed and must be expressly undertaken.

A guarantee for an initial contract may not automatically cover every amendment, increase or new obligation. Changes made without the guarantor’s participation must be analysed for their effect on liability.

The surety’s liability cannot exceed what was guaranteed and may include principal, certain ancillary amounts and expenses within statutory and contractual limits. The calculation must be separated and explained.

The debtor’s payments, set-offs, releases, restructurings and any event reducing or extinguishing the principal debt are checked. The creditor cannot collect the same obligation twice.

• outstanding principal and due dates;
• interest and penalties covered by the guarantee;
• the maximum cap and currency;
• duration or expiry date of the guarantee;
• permitted recovery costs;
• concurrent guarantees and amounts already collected.

Depending on the agreement and type of suretyship, the guarantor may invoke the benefit of prior recourse against the debtor or the benefit of division, or may waive these under statutory conditions. Classification as a joint and several surety must be checked, not assumed.

The surety may invoke certain defences concerning the principal debt and their own undertaking. The creditor must preserve security and avoid conduct that would unjustifiably prejudice the guarantor’s right of recourse.

The notice identifies the guarantee, debt, due date, calculation, debtor’s default and deadline granted to the guarantor. Necessary documents are attached without excessive disclosure of irrelevant information.

Steps against the debtor and guarantor must be coordinated. Every payment is immediately reflected in the balance, and an agreement with one obligor must be drafted so that it does not unintentionally extinguish rights against the others.