Everything you need to know about bail bonds
The guarantee is a guarantee given by a third party in contracts, in which it is obliged to satisfy the debt in case of nonpayment by the debtor. It is thus an ancillary contract, which serves as reinforcement in favor of the creditor of the main contractual relationship.
A bail bond at via Bond Cliff is a written promise signed by a defendant and surety to ensure that a criminal defendant will appear in court at the scheduled time and date, as ordered by the court.
THE BENEFIT OF ORDER
As a rule, the guarantor can only be executed in case of default by the original debtor – it is the so-called order benefit clause. In this case, if the guarantor is eventually executed by the debt, he can get rid of the execution by indicating the assets of the principal debtor, sufficient to pay the debt.
However, if the guarantee contract contains an express waiver by the guarantor for the benefit of order (and this is usually the case in bank contracts), then the guarantor can be executed immediately, without first depleting the original debtor’s assets.
POSSIBILITY OF CANCELLATION OF BAIL
The Brazilian Civil Code, in article 1,647, item III, requires the agreement of the guarantor’s spouse to provide bail, except if married under the regime of conventional separation of assets.
Thus, in cases of bail without consent of the impaired spouse, he or her heirs, if deceased, may sue in court for the annulment of the guarantee within two (2) years from the end of the marriage.
If the period elapses, the guarantee remains valid, due to the loss of the right of claim of the injured parties. In other words, the validation of the guaranteed contract for the time elapsed, although there was, at first, cause for annulment.
SPECIFIC SITUATIONS JUDGED BY THE COURTS
Once the trustees have been sued in court, the Courts, especially the Superior Court of Justice (STJ), have established firm jurisprudence on the subject. Let’s see the most relevant, but logically without exhausting the question:
A bond is given by one of the spouses without consent of the other: the bond is ineffective in its entirety so that the creditor loses the guarantee and cannot execute the guarantor.
The spouse who declares single marital status at the time of hiring: the given bond has been recognized as valid, even though there is no consent; because the guarantor, by concealing the condition of married, acted in bad faith before the creditor, not being able to benefit from his awkwardness. However, in the event of such a situation, the performance of the guarantor cannot attain the assets that belong to the part that belongs to the other spouse.
Guarantor living in a stable union: in the case of the guarantor living in a stable union, the lack of consent of his partner does not authorize the annulment of the bond, even if the stable union is recorded in public deed recorded in Tabloid News.
This is because the public deed of stable union is not registered in the Civil Registry of Natural Persons domicile of the coexistent (there is no law determining the registration), and, thus, it can not be demanded of the creditor diligencias in the sense of ascertaining the existence of eventual stable union, since it would have to consult all the tabelionatos of Brazil, which proves unviable and unenforceable.
Therefore, the bond given by one of the companions without granting the other does not prevent the execution of the guarantor.
Guarantee on the lease: As a general rule, the execution of debt cannot reach the only good residential property of the debtor, considering the law of this holiday is good family, necessary to safeguard the minimum of dignity to the family group. However, the jurisprudence has removed the impenhorabilidad of the single residential property, when it comes of debt originated from bail in the lease contract.
Therefore, there are many relevant issues related to the surety agreement, which require care from all parties involved. Lenders should be aware of situations that may lead to ineffective collateral. The guarantor, however, is important as to the limits of the bonding of his assets to the guaranteed debt.
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