||The examples and perspective in this article may not represent a worldwide view of the subject. (December 2010)|
||It has been suggested that this article be merged with Surety. (Discuss) Proposed since March 2013.|
A surety bond or surety is a promise to pay one party (the obligee) a certain amount if a second party (the principal) fails to meet some obligation, such as fulfilling the terms of a contract. The surety bond protects the obligee against losses resulting from the principal's failure to meet the obligation.
A surety bond is a contract among at least three parties:
- The obligee - the party who is the recipient of an obligation,
- The principal - the primary party who will be performing the contractual obligation,
- The surety - who assures the obligee that the principal can perform the task
European surety bonds are issued by banks and are called "Bank Guarantees" in English and "Caution" in French. They pay out cash to the limit of guarantee in the event of the default of the Principal to uphold his obligations to the Obligee, without reference by the Obligee to the Principal and against the Obligee's sole verified statement of claim to the bank.
Through a surety bond, the surety agrees to uphold — for the benefit of the obligee — the contractual promises (obligations) made by the principal if the principal fails to uphold its promises to the obligee. The contract is formed so as to induce the obligee to contract with the principal, i.e., to demonstrate the credibility of the principal and guarantee performance and completion per the terms of the agreement.
The principal will pay a premium (usually annually) in exchange for the bonding company's financial strength to extend surety credit. In the event of a claim, the surety will investigate it. If it turns out to be a valid claim, the surety will pay it and then turn to the principal for reimbursement of the amount paid on the claim and any legal fees incurred.
If the principal defaults and the surety turns out to be insolvent, the purpose of the bond is rendered nugatory. Thus, the surety on a bond is usually an insurance company whose solvency is verified by private audit, governmental regulation, or both.
A key term in nearly every surety bond is the penal sum. This is a specified amount of money which is the maximum amount that the surety will be required to pay in the event of the principal's default. This allows the surety to assess the risk involved in giving the bond; the premium charged is determined accordingly.
Surety bonds are also used in other situations, for example, to secure the proper performance of fiduciary duties by persons in positions of private or public trust.
Annual US surety bond premiums are approximately $3.5 billion. State insurance commissioners are responsible for regulating corporate surety activities within their jurisdictions. The commissioners also license and regulate brokers or agents who sell the bonds.
Individual surety bonds represent the original form of suretyship. The earliest known record of a contract of suretyship is a Mesopotamian tablet written around 2750 BC. Evidence of individual surety bonds exists in the Code of Hammurabi and in Babylon, Persia, Assyria, Rome, Carthage, among the ancient Hebrews and (later) in England.
In 1865, the Fidelity Insurance Company became the first US Corporate Surety company, but the venture soon failed.
Contract surety bonds
Contract bonds, used heavily in the construction industry by general contractors as a part of construction law, are a guarantee from a Surety to a project's owner (Obligee) that a general contractor (Principal) will adhere to the provisions of a contract. The Associated General Contractors of America, a United States trade association, provides some information for their members on these bonds. Contract bonds are not the same thing as contractor's license bonds, which may be required as part of a license.
Included in this category are: bid bonds (guarantee that a contractor will enter into a contract if awarded the bid), performance bonds (guarantee that a contractor will perform the work as specified by the contract), payment bonds (guarantee that a contractor will pay for services, particularly subcontractors and materials and particularly for federal projects where a mechanic's lien is not available), and maintenance bonds (guarantee that a contractor will provide facility repair and upkeep for a specified period of time). There are also miscellaneous contract bonds that do not fall within the categories above, the most common of which are subdivision and supply bonds. Bonds are typically required for federal government projects by the Miller Act and state projects under "little Miller Acts". In federal government, the contract language is determined by the government. In private contracts the parties may freely contract the language and requirements. Standard form contracts provided by American Institute of Architects (AIA) and the Associated General Contractors of America (AGC) make bonding optional. If the parties agree to require bonding, additional forms such as the performance bond contract AIA Document 311 provide common terms.
Losses arise when contractors do not complete their contracts, which often arises when the contractor goes out of business. Contractors often go out of business; for example, a study by BizMiner found that of 853,372 contracts in the United States in 2002, 28.5% had exited business by 2004. The average failure rate of contractors in the United States from 1989 to 2002 was 14 percent versus 12 for other industries.
Prices are as a percent of the penal sum (the maximum that the surety is liable for) ranging from around one percent to five percent, with the most credit-worthy contracts paying the least. The bond typically includes an indemnity agreement whereby the principal contractor or others agree to indemnify the surety if there is a loss. In the United States, the Small Business Administration may guarantee surety bonds; in 2013 the eligible contract tripled to $6.5 million.
Commercial surety bonds
Commercial bonds represent the broad range of bond types that do not fit the classification of contract. They are generally divided into four sub-types: license and permit, court, public official, and miscellaneous.
License and permit bonds
License and permit bonds are required by certain federal, state, or municipal governments as prerequisites to receiving a license or permit to engage in certain business activities. These bonds function as a guarantee from a Surety to a government and its constituents (Obligee) that a company (Principal) will comply with an underlying statute, state law, municipal ordinance, or regulation.
Specific examples include:
- Contractor’s license bonds, which assure that a contractor (such as a plumber, electrician, or general contractor) complies with laws relating to his field. In the United States, bonding requirements may be at local or state level.
- Customs bonds, including importer entry bonds, which assure compliance with all relevant laws, as well as payment of import duties and taxes.
- Tax bonds, which assure that a business owner will comply with laws relating to the remittance of sales or other taxes.
- Reclamation and environmental protection bonds
- Broker’s bonds, including Insurance, Mortgage, and Title Agency bonds
- ERISA (Employee Retirement Income Security Act) bonds
- Motor vehicle dealer bonds
- Money transmitter bonds
- Health spa bonds, which assure that a health spa will comply with local laws relating to their field, as well as refund dues for any prepaid services in the event the spa closes.
Court bonds are those bonds prescribed by statute and relate to the courts. They are further broken down into judicial bonds and fiduciary bonds. Judicial bonds arise out of litigation and are posted by parties seeking court remedies or defending against legal actions seeking court remedies. Fiduciary, or probate, bonds are filed in probate courts and courts that exercise equitable jurisdiction; they guarantee that persons whom such courts have entrusted with the care of others’ property will perform their specified duties faithfully.
Examples of judicial bonds include appeal bonds, supersedeas bonds, attachment bonds, replevin bonds, injunction bonds, Mechanic's lien bonds, and bail bonds. Examples of fiduciary bonds include administrator, guardian, and trustee bonds.
Public official bonds
Public official bonds guarantee the honesty and faithful performance of those people who are elected or appointed to positions of public trust. Examples of officials sometimes requiring bonds include: notaries public, treasurers, commissioners, judges, town clerks, law enforcement officers, and Credit Union volunteers.
Miscellaneous bonds are those that do not fit well under the other commercial surety bond classifications. They often support private relationships and unique business needs. Examples of significant miscellaneous bonds include: lost securities bonds, hazardous waste removal bonds, credit enhancement financial guarantee bonds, self–insured workers compensation guarantee bonds, and wage and welfare/fringe benefit (Union) bonds.
Fidelity bonds, also known as employee dishonesty coverage, cover theft of an employer's property by its own employees. Though referred to as bonds, fidelity coverage functions as a traditional insurance policy rather than a surety bond.
- Demand guarantee
- Fidelity Bonds
- Performance Bond
- Submittals (construction)
- Shop drawing
- "About the Industry". The Surety & Fidelity Association of America. Retrieved 2009-07-17.
- "The Importance of Surety Bonds in Construction". Surety Information Office. Retrieved 2009-11-09.
- Gallagher, Edward Graham (2000). The Law of Suretyship. American Bar Associatio. p. 27.
- "The Guarantee Society Ltd". Aviva. Retrieved August 13, 2012.
- "Surety Bonds Timeline". SuretyBonds.com. Retrieved August 13, 2012.
- "Contract Surety Bonds". Zurich. Retrieved August 13, 2012.
- Gantt PH. (1968). Problems of Private Claimants Under Miller Act Payment Bonds. William and Mary Law Review.
- "Bond Resources". Texas Department of Insurance. Retrieved August 13, 2012.
- Dan Donohue and George Thomas. (1996). Construction Surety Bonds In Plain English. Webcite archive.
- Surety Information Office. (2009). The Importance of Surety Bonds in Construction.
- McIntyre M. (2007). Why Do Contractors Fail. Construction Business Owner.
- Donohue D, Thomas G. (1996). How Surety Bonds Work. Archived at Webcite.
- Surety bonds help businesses grow on contract success. SBA News at The Herald Business Journal.
- (2006). Contractor's State License Bonds: Desk Reference, p. xv. American Bar Association.
- Rendleman D. (2006). A Cap on the Defendent's Appeal Bond?: Punitive Damages Tort Reform. Washington & Lee University School of Law