First of all, as has already been mentioned, it is a unilateral contract in which only one party (security) assumes an obligation. The existence of a valid bonding agreement depends in principle on a contract duly agreed between the surety company and the creditor. Therefore, the debtor`s participation in the contract or his consent is not necessary. The parties to the guarantee agreements are creditors or creditors and the guarantee. In other words, the guarantee agreement between the guarantor and the creditor is different from that between the creditor and the principal debtor. With respect to the statute of limitations, the Tribunal held in paragraph 21 that the other co-debtors could not invoke the cancellation of the debt by order if a creditor, by the service of a procedure, demanded payment from a co-debtor who had committed himself in solidarity with others. The principle was incorporated into Roman-Dutch law and extended to guarantees on the basis that the purpose of the interruption of a principal debtor`s prescription was to interrupt the prescription of a guarantee. The applicant asked the SCA to apply this principle to the opposite situation. The court found a quo quo that neither Roman nor Dutch Roman law had ever proposed that the opposite should apply – in other words, the interruption of the prescription against the guarantee should constitute an interruption of the statute of limitations against the principal culprit. The German-Dutch writers, who wrote in detail and debated the subject, said that the opposite should not apply. It is therefore simply not part of our common law.
On March 10, 2003, Liberty Active Ltd (Liberty), a subsidiary of Liberty Group Ltd, a subsidiary of Liberty Group Ltd, entered into a written broking agreement with ECE Financial Holdings (ECE), under which ECE was to act as an independent intermediary for its financial products. In compensation for its services, the eCE would collect commissions on premiums collected by Liberty for contracts issued on the proposal of the ECE. ECE was permanently registered on February 24, 2011. Between March 2003 and February 2005, eight individuals, including the respondent, signed separate but identical surety agreements in which they agree, as sureties and co-debtors to Solidum with ECE, to pay Liberty any funds that the ECE may owe Liberty in the future “for any cause.” In March 2003 and March 2011, and before Liberty received bonuses for contracts issued on the proposal of the EEC, Liberty preferred commissions to the ECE. However, during the same period, until August 2011, contracts for which commissions were submitted to ECE were either cancelled or terminated for non-payment of premiums to Liberty or terminated. As a result, Liberty`s advance commissions were reimbursed by the ECE and guarantees. Subsequently, all claims under the recovery commissions relating to the broking agreement were transferred to Liberty Group Ltd. On 22 September 2011, the applicant, as a transfer commission, formed summonses against all guarantees and co-debts with a view to repaying the amount owed. In its statements, it notably argued that the agreement between the parties had been terminated on 14 March 2011.