Release of Surety by the Act of the Creditor – Specific Way of Extinguishing the Fiduciary Duties

Abstract

Being based on the mechanism of subrogation, the recourse of the surety transfers tale quale all the remedies of the creditor against the principal debtor from the creditor towards the surety. By subrogating the rights of the creditor, the surety seeks to benefit from all the guarantees that accompany the claim and ensures the recourse of the surety against his debtor. When, after contracting the surety, culpably, the creditor loses, limits these guarantees or just reduces the chances of the surety to recover (through subrogation) from the debtor who paid directly to the creditor, pursuant to the provisions of art. 2315 Civil Code, the guarantor is released within the limit of the amount he could not recover from the debtor. The benefit of the subrogation exception is a substantive defense, the defendant fiduciary thus being able to defend his interests in a lawsuit brought against him by the creditor.