It is a commonplace among lawyers that the surety, especially the uncompensated surety, is a favorite of the law whose obligations are strictly construed, and with whose sacred rights no designing creditor dare tamper with impunity. In fact, a more reliable maxim might be that "the [surety's] lot is not a happy one." While at common law any change in the obligation of the principal to the creditor discharges the surety, this rule, in many respects, is quite meaningless; and, even where meaningful, easily circumvented. The consent of the surety to a change in the obligation generally precludes discharge, even when the consent is prospective, open-ended, and buried in the fine print of the document evidencing the obligation. Even if the surety has the temerity to refuse consent, an appropriate recitation by the creditor of the ritual "reservation of rights" formula will generally serve to keep the surety bound since, with such a reservation, the surety's recourse against the principal is not terminated.
Michael J. Herbert,
Twisting Slowly, Slowly in the Wind: The Effect of Delay on a Surety's Obligations in Virginia,
U. Rich. L. Rev.
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