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Forms of bail
The form of bail varies from jurisdiction, but the common forms of bail include:
1. Recognizance - a promise made by the accused to the court that he/she will attend all required judicial proceedings and will not engage in further illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless it is forfeited by the court; this is denominated an unsecured appearance bond.
In British and American law, the term recognizance is usually employed to describe an obligation of record, entered into before some court or magistrate duly authorized, whereby the party bound acknowledges (recognizes) that he owes a personal debt to the government. This debt is generally subject to a condition that the obligation to pay shall be avoided if he shall do some particular act, as if he shall appear at the assizes, keep the peace, or the like.
Recognizance is most often encountered regarding bail in criminal cases. By filing a bail bond with the court, the defendants will usually be released from imprisonment pending a trial or appeal. If no bail has been set, the defendants are released "on their own recognizance.
2. Surety - when a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount whether the defendant appears in court or not. The court in many jurisdictions, especially jurisdictions that prohibit bail bondsmen, may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail.
In most common law jurisdictions, a contract of suretyship is subject to the statute of frauds (or its equivalent local laws) and is only enforceable if memorialized by a writing signed by the surety. If the surety is required to pay or perform due to the principal's failure to do so, the law will usually give the surety a right of subrogation, allowing him to recover the cost to him of making payment or performance on the principal's behalf, even in the absence of an express agreement to that effect between the surety and the principal.
The act of becoming a surety is also called a guaranty. Traditionally a guaranty was distinguished from a surety in that the surety's liability was joint and primary with the principal, wherease the guaranty's liability was ancillary and derivative, but many jurisdictions have abolished this distinction.
In the United States, Under Article 3 of the Uniform Commercial Code, a person who signs a negotiable instrument as a surety is termed an accommodation party; such a party may be able to assert defenses to the enforcement of an instrument not available to the maker of the instrument.
A surety bond is a contract between at least three parties: (i) the principal, (ii) the obligee, and (iii) the surety. Through this agreement, the surety agrees to make the obligee whole (usually by payment of money) if the principal defaults in its performance of its promise 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.
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