In Dutch Caribbean law on personal security rights, the concept of joint and several liability takes a central position. Joint and several liability occurs when several debtors are liable for the same debt, and each for the full amount of that debt. Suretyship is a specific contractual form of joint and several liability. It is probably the most well-known type of a guarantee under Dutch Caribbean law. A typical example of suretyship is the case in which a shareholder of a corporation guarantees the debts of the corporation towards a bank. Suretyship is by default a dependent and subsidiary liability.
The dependent nature means that the obligation of the surety towards the creditor cannot exist without the obligation of the principal debtor towards the creditor. The consequence of this, is that the surety is discharged when the obligation of the principal debtor is null and void from the start or when it is annulled. Moreover, when the principal debtor performs in full, the suretyship extinguishes. Another characteristic of dependent rights under Dutch Caribbean law is that a dependent right follows the right on which it depends. The creditor cannot transfer the dependent right separately, and a transfer of the primary right (on which the dependent right depends) per definition means a transfer of the dependent right. The dependent nature also brings with it that the surety can invoke all defenses towards the creditor that the principal debtor has towards the creditor, in as far as these concern the existence, content or time of performance of the obligation of the principal debtor. The surety can suspend performance if the principal debtor can annul his obligation, provided the surety or creditor has set a deadline for invoking the ground for annulling.
The subsidiary nature means that the surety does not have to perform until the principal debtor has defaulted. It should be noted that this form of subsidiarity is not very strong and does not provide much protection. A simple default by the principal debtor is enough to trigger the possibility of calling on the surety. In case of concurrence of security rights available to a creditor, the question arises whether the creditor should first try and satisfy his material interest by invoking real security rights or other available ways to receive payment. In case of suretyship, the creditor generally has the choice which security rights he invokes first. However, the circumstances of the case may lead to another conclusion, based on the general principle of reasonableness and fairness.
Although suretyship is by default a dependent and subsidiary liability, the contract of suretyship can deviate from the subsidiary nature and also (in part) from the dependent nature, especially in the case of professional sureties. In that sense, suretyship of professional guarantors can closely resemble general joint and several liability as far as the relationship creditor-guarantor is concerned.