Suretyship is one of the methods of personal security for obligations. Other methods include guarantees, accession to debt, credit insurance, *del credere* liability, and letters of credit.
A personal security for obligations results in the imposition of financial liability on an additional person who, although not a party to the secured obligation, assumes responsibility for fulfilling the debtor's performance. This means that the surety, through a surety agreement concluded with the creditor, undertakes to fulfill the obligation if the debtor fails to do so. The surety's declaration must be made to the creditor in writing under penalty of nullity.
The creditor thus gains an additional person who is liable with their entire estate (both present and future) for the secured obligation. It is important to note that a declaration of suretyship made to the debtor or a third party does not have legal effects concerning the creditor. This principle has been confirmed by the Supreme Court in its ruling dated August 26, 1976 (case no. I CR 339/76), as well as by the Court of Appeal in Gdańsk on May 15, 2013 (case no. V ACa 217/13).
The content of the surety agreement should include the surety's declaration that they undertake to fulfill a specific obligation in the event the debtor fails to do so. Suretyship may be granted subject to a condition or term. The agreement may also limit the surety's liability to a specific amount or portion of the debt.
As the Court of Appeal in Białystok stated in its judgment of August 30, 2019 (case no. I ACa 759/18): *“Considering the joint and several liability of the principal debtor and the surety, the creditor has the right to choose which of them to direct their claim against. Given that suretyship serves as a form of securing obligations, the creditor may demand performance from the surety without involving the principal debtor. From the moment the declaration of suretyship is made, a binding legal relationship arises between the surety and the creditor of the principal debt. Accordingly, the extent of the surety’s liability does not differ from that of the principal debtor.”*
A surety may guarantee future debt up to a predetermined amount. A future debt is one that does not exist at the time the surety agreement is concluded, and at that time, the debtor is not obligated to a specific performance in terms of content and subject matter. However, the surety agreement should specify the legal relationship from which the secured obligation will arise. The Supreme Court has expressly held that the validity of suretyship for future debt does not depend on specifying the amount of the debt in the surety agreement, but it is sufficient to define the debt by indicating its scope (Supreme Court judgments of December 11, 2009, case no. V CSK 215/09; May 13, 2010, case no. IV CSK 558/09; and May 11, 2017, case no. II CSK 496/16).
Suretyship may be provided for a fixed term or indefinitely. However, it is important that the term of the suretyship be explicitly stated in the agreement. In the case of term-limited suretyship, the surety is liable only if the debtor fails to fulfill the obligation within the period specified in the surety agreement. If no term is specified, the suretyship is deemed indefinite and continues as long as the principal obligation exists.
An indefinite suretyship may generally be revoked by the surety at any time, terminating the uncertainty about whether their obligation will arise. The revocation may be partial or complete but must occur before the debt arises. Notably, this right cannot be excluded in the agreement. In contrast, term-limited suretyship cannot be revoked.
The surety’s declaration of revocation must be addressed to the creditor, as the declaration of suretyship was made to the creditor. Ideally, it should be in writing to facilitate future proof of the revocation.
Under Article 879 of the Civil Code, the scope of the surety's obligation is determined by the current scope of the debtor’s obligation. However, any legal act between the debtor and creditor after the suretyship is granted cannot increase the surety’s liability. The Supreme Court, in its decision of October 16, 2020 (case no. III CSK 57/20), stated that *“a future debt, as provided for in Article 878(1) of the Civil Code, is one that does not exist at the time the surety agreement is concluded. In such cases, the debtor is not yet obligated to a specific performance in terms of subject matter and content (e.g., where the debt's occurrence depends on a specific condition or event). If, however, at the time of concluding the surety agreement, the debtor is obligated to a specified performance but it is not yet due, the suretyship pertains to an existing debt, not a future debt.”*
In a judgment by the District Court in Kielce on October 24, 2017 (case no. VIII C 261/17), the court considered a case where a landlord sought payment of a debt from a surety who guaranteed the payment of rental obligations. The court emphasized that a debt existing but not yet due is not a future obligation. If, at the time the surety agreement is concluded, the debtor is already obligated to perform a specified act that is not yet due, it concerns an existing debt. The court further noted that periodic obligations arising within an existing obligation, such as rent, are not future debts.