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This article was translated by an automatic translation system, and was therefore not reviewed by people.
When it comes to guarantee it is a common confusion about this institute and bail. A minority of people are aware of the differences and many of these guarantees are being issued every day in the securities and contracts as guarantors and guarantors. Add that endorsement and guarantee institutes are junk used in the wrong contracts and securities referred.
The majority view of the doctrine is that the legal guarantee of the bond is different because both the origin and the legal regramentos are distinct.
First it should be noted that the endorsement is a guarantee of the securities exchange, which is not to be confused with the other guarantees of the law, including the bail.
Note that the obligation of the guarantor is incidental to another principal of which is dependent, while the liability of the guarantor remains even when legally null and void the obligation guaranteed.
The endorsement is an informal contract, which improves with simple signature on an exchange, once established, making birth to guarantee the obligation to pay, if you do not guaranteed. The guarantee, in turn, may be paid as security for any obligation to do or not do. Thus, the endorsement is limited to the obligation to pay, while the bail mentions the obligation to do and not do.
Interesting point that even in the endorsement, the creditor can sue the guarantor or any of them, it being the right to require, first, whether the activated endorsed as the obligation assumed is autonomous and independent, although the guaranteed the same degree. Already in the guarantee, the guarantor may require that, first, to run the assurances, given the benefit of order under Articles 827, 828 and 839 of the Civil Code. However, the bond trading, there is no benefit of order or excussão (Commercial Code, articles 258 and 261), but still no guarantee that the confusion with the endorsement business, because, among other reasons, is that bail may be given in a separate document, until the endorsement has to be launched in the title or in its elongation.
The author Elza Maria Alves Canuto (Sale of Goods Fiduciary Mobile - Responsabiliade the endorsement, Ed. Del Rey, Belo Horizonte: 2004, pg. 63), states that "in the bail business, not the guarantor trader is required to grant uxória , while the guarantee is not the case, "which is also a difference between the two. However, by appropriate, here is the criticism that the endorsement must have consent of the spouse but as the guarantor is exposing his family to the possible loss of all goods.
It is therefore appropriate to quote the words of J. dotrinador M. Othon Sidou ( "Deposit", Ed. Forense, Rio de Janeiro: 2000, pg. 38): "The point of similarity, perhaps unique, among the trust and endorsement based on that both institutes are generated in order to ensure compliance with obligation to others. We have said that the bond is a contract, the endorsement is a unilateral act of will. The guarantee, as civil obligation is secondary and subordinate, is not understanding or accepting it without the principal obligation, the endorsement, as required change, is primary and independent, although formally an act of membership. Thus, the bond is a bond with two debtors; endorsement in two with two debt obligations. "
Thus, the bond, commercial or civil, is not to be confused with the endorsement, but in the end aimed at. Guarantees are diverse, each with specific requirements and different characteristics.
Moreover, beyond the differences here transcribed, it indicates that the guarantee contract is inserted in the legislation and provided the civil codes, while the approval came from the practice of simple declaration of will of the guarantor. It also emphasized that the endorsement should be launched directly on the title and remains valid even if the obligation of the guaranteed zero (except if there is defect of form), while the guarantee contract as accessory provides a conclusion that is void the obligation of the bailed , was also extinguished obligation of the guarantor.
It is the distinction between endorsement and guarantee, that differences should be aware of the company that enters into contracts and issue debt securities frequently, and in substacial of the cases, people do not know for sure as a guarantee of payment to are compromentendo.
This article was translated by an automatic translation system, and was therefore not reviewed by people.