What is the common law right of a guarantor who paid the guaranteed obligation?

California, United States of America


The following excerpt is from Flojo Internat., Inc. v. Lassleben, 4 Cal.App.4th 713, 6 Cal.Rptr.2d 99 (Cal. App. 1992):

The common law right of a guarantor who paid the guaranteed obligation was reflected in early California cases. Yule v. Bishop (1901) 133 Cal. 574, 62 P. 68 explained that when the guarantor pays the note the primary obligation is extinguished. "[N]ew rights and liabilities then arise--upon the part of the principal, to reimburse the surety for the moneys expended, with legal interest, though not according to the terms of the primary obligation.... Since the principal obligation is thus extinguished, it cannot be [4 Cal.App.4th 721] Y(3)27 that the original obligation is kept alive and passes to the surety by equitable assignment or subrogation." (Id. at p. 579, 62 P. 68.) This rule was clarified in Collection Control Bureau v. Weiss (1975) 50 Cal.App.3d 865, 123 Cal.Rptr. 625, to apply only to situations in which the note, when paid by the guarantor, is marked "paid on its face," rather than being assigned to the guarantor. (Id. at p. 869, 123 Cal.Rptr. 625.)

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