The above argument is contrary to the CAS jurisprudence in the Kilroe-Daley and Neon decisions. In Kilroe-Daley, the secondary nature of a guarantee agreement was emphasized, when it was a separate contract between the principal debtor and its creditor. The addition of the words “co-indebtedness” did not transform the contract into a contract other than a guarantee contract. Therefore, when the principal debt was imposed, the fault of the surety was also prescribed and ceased to exist. In Jans, the issue was whether the interruption of the statute of limitations in favour of the principal debtor interrupted the prescription transaction in favour of a guarantee. Following a thorough review by the authorities, the Tribunal noted that there are considerable differences between the relationship between the principal debtor and the guarantee state and the relationship between the co-debtors. The Tribunal therefore found that an interruption or delay in the statute of limitations for the principal debtor interrupted or delayed the operation of the prescription in favour of the guarantee. Between the co-debtors, the Common Law authorized the judicial interruption of the prescription of a co-debtor by the service of another co-debtor. In this regard, it should be noted that, in its copy, the applicant characterized the respondent and other security as “co-debtors”. That is the substance of the complainant`s case.
On the whole, the applicant`s case is such that the guarantees, also binding to the ERC as “coensance insolidum”, have disappeared from the subsidiary nature of its obligations. Their liability is that of the principal debtor, and they have effectively become debtors. The complainant continues to argue that a waiver of the legal exception of the apology means that liability for the guarantee is no longer the principal responsibility of the principal debtor. The addition of the words “co-indebtedness in solidum” indicated the intention that liability would be of the same magnitude and nature as that of the principal debtor. This is what made the principal debtor and the guarantee, co-responsible. Thus, the delivery of the citation to one of them, Mr. September in this case, interrupted the statute of limitations in favour of the rest. This criticism was rejected. In all cases, the expression received sufficient attention and appropriate contextual significance. The error in criticizing decisions is the confusion between two different concepts: co-leaders and co-leaders. The commitment of the warranty is an accessory of the main order.
This is an obligation to respect the principal debtor`s commitment and, if not, to compensate the creditor. In addition, the diktat within the Union government in Neon was explained in the years 472 – 473, where Trollip said YES, he does not think that Wessels JP, when he said that the commitment of the guarantee “must have the same magnitude and that of the principal debtor”, signing as co-responsible, the guarantee became part of the main contract. Previously, for 471C – 472E, it was stated that the correct legal situation was as follows: although the suretyman binds as an accomplice, the creditor does not do anything but that of a guarantor who has waived the benefits normally available for a right of guarantee against the creditor. They do not become parties to the contract between the creditor and the principal debtor. A lender and co-debtor does not assume separate independent liability as principal debtor; the addition of the words “co-indebtedness” does not convert its contract into a contract other than a guarantee contract.