Similarities and differences between joint and several warranties and general warranties

The guarantor's assumption of joint and several guarantee liability is premised on waiving the right to defend in the first instance. Therefore, whether or not there is the right to defend in the first instance is the most important difference between a general guarantee and a joint and several liability guarantee. The guarantor's assumption of debts on behalf of the guarantor is the similarity between the two types of guarantees. When the general guarantor waives the right to defend in the first suit or is not allowed to exercise the right to defend in the first suit, the general guarantee is actually transformed into a joint and several liability guarantee.

Article 19 of China's Guarantee Law also stipulates: "If the parties have not agreed on the guarantee method or the agreement is not clear, they shall bear the guarantee liability in accordance with the joint and several liability guarantee." "In practice, due to the general terms and contents of a large number of guarantee contracts, the simplification of the guarantee commitment, and the fact that the parties issuing the guarantee do not have a strong legal concept, it is difficult to achieve rigorous writing, so there are quite a few unclear agreements on guarantee liability, such as some only affix the official seal in the column of the guarantee unit, only write the guarantee repayment or write the guarantee liability, etc., some courts infer it as a general guarantee, and some courts regard it as a joint and several liability guarantee, and the grasp in trial practice is very inconsistent.

According to the provisions of the Security Law and the basic principles grasped in the current trial practice, when there is a discrepancy in the understanding of a guarantee, it should be interpreted in favor of the creditor, that is, when the agreement on guarantee liability is unclear, such a vague guarantee should be recognized as a joint and several liability guarantee, so as to be more conducive to protecting the realization of the legitimate rights and interests of creditors.

A general guarantee means that the parties agree in the guarantee contract that if the debtor fails to perform the debt, the guarantor shall bear the guarantee liability; Joint and several guarantee means that the parties agree in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt.

The guarantor refuses to assume the guarantee liability before the main contract has been tried or arbitrated and the property is enforced; Generally, the guarantor has the right to defend in the first instance. Joint and several liability guarantees that there is no right to defend in the first instance.

Legal Analysis: In general, the legal liability of joint and several guarantees is greater than that of general guarantees.

A general guarantee refers to a guarantee in which the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform the debt. The guarantor of a general guarantee may refuse to bear the guarantee liability to the creditor before the main contract dispute has not been tried or arbitrated, and the debtor's property is still unable to perform its obligations in accordance with the law.

Legal basis: Article 681 of the Civil Code of the People's Republic of China A guarantee contract is a contract in which the guarantor and the creditor agree that the guarantor will perform the debt or assume responsibility when the debtor fails to perform the due debt or the circumstances agreed by the parties occur.

Legal analysis: A vague guarantee refers to the agreement between the parties in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform the debt. Joint and several liability guarantee means that when the debtor of the joint and several liability guarantee fails to perform the due debts or the circumstances agreed by the parties occur, the creditor can directly request the guarantor to assume the guarantee liability within the scope of the guarantee.

[Legal basis].The Civil Law of the People's Republic of China

Article 686.

The forms of guarantee include general warranty and joint and several liability guarantee.

If the parties do not agree on the form of guarantee in the guarantee contract or the agreement is not clear, they shall bear the guarantee liability in accordance with the general guarantee.

General warranties and joint and several warranties are closely related to our lives, and we can understand them in this way. If it is a general guarantee, the debtor must be approached first when the loan expires, and if the guarantor directly asks for money, the guarantor can refuse, which is called the right to sue first. If it is a joint and several guarantee, after the loan is due, you can directly ask the debtor or guarantor to repay the money.

It is agreed that if A cannot be returned, B will be repaid, which is a general guarantee. It is not expressly agreed to be a joint and several guarantee.

Generally, it will be stated whether the warranty liability is joint and several or general.

If there is no explanation, if the parties agree in the guarantee contract that the guarantor will only begin to bear the guarantee liability when the debtor fails to perform the debt, it is a general guarantee. For example, if A is unable to perform its obligations, C bears the guarantee liability.

In this case, C assumes the general warranty liability.

There are generally two ways to generate joint and several liability, one is express, and the guarantee contract directly stipulates that joint and several liability is provided. The other is the presumption, where the guarantee contract does not stipulate the guarantee method or the agreement is unclear, it is presumed to be a joint and several guarantee.

The general guarantee is a guarantee that the parties agree in the guarantee contract that if the debtor fails to perform the debt, the guarantee witness shall bear the guarantee liability; Joint and several guarantee liability is a guarantee that the parties agree in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt.