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solidary in nature.
The term “surety” has a specific meaning under the Civil Code. Article 2047 provides the
statutory definition of a surety agreement, that by guaranty a person, called the guarantor, binds
himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail
to do so.
If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter
3, Title I of this Book shall be observed. In such case the contract is called a suretyship.
As provided in Article 2047, in a surety agreement the surety undertakes to be bound solidarily
with the principal debtor. Thus, a surety agreement is an ancillary contract as it presupposes the
existence of a principal contract. The argument rests solely on the solidary nature of the
obligation of the surety under Article 2047. In tandem with the nomenclature “SURETIES”, this
argument can only be viable if the obligations established in the Undertaking do partake of the
nature of suretyship as defined by Article 2047, NCC, otherwise, the liability is joint. (Escaño, et
al. v. Ortigas, Jr., G.R. No. 151953, June 29, 2007, Tinga, J).
Nature Of Suretyship Agreement
As indicated by Article 2047, a suretyship requires a principal debtor to whom the surety is
solidarily bound by way of an ancillary obligation of segregate identity from the obligation
between the principal debtor and the creditor. The suretyship does bind the surety to the creditor,
inasmuch as the latter is vested with the right to proceed against the former to collect the credit in
lieu of proceeding against the principal debtor for the same obligation. At the same time, there is
also a legal tie created between the surety and the principal debtor to which the creditor is not
privy or party to. The moment the surety fully answers to the creditor for the obligation created
by the principal debtor, such obligation is extinguished. At the same time, the surety may seek
reimbursement from the principal debtor for the amount paid, for the surety does in fact “become
subrogated to all the rights and remedies of the creditor.” (Escaño, et al. v. Ortigas, Jr., G.R. No.
151953, June 29, 2007, Tinga, J, citing Palmares v. CA).
Note:
“Since, generally, it is not necessary for a creditor to proceed against a principal in order to hold
the surety liable, where, by the terms of the contract, the obligation of the surety is the same as
that of the principal, then as soon as the principal is in default, the surety is likewise in default,
and may be sued immediately and before any proceedings are had against the principal.”
(Palmares v. CA, 351 Phil. 664, 685 (1998) citing Standard Accident Insurance Co. v. Standard
Oil Co., 133 So. 2d 539; School District No. 65 of Lincoln County v. Universal Surety Co., 135
N. W. 2d 232; Depot Realty Syndicate v. Enterprise Brewing Co., 171 P. 223).
Distinction Between A Joint And Several Debtor And A Surety
In the case of joint and several debtors, Article 1217 makes plain that the solidary debtor who
effected the payment to the creditor “may claim from his co-debtors only the share which
corresponds to each, with the interest for the payment already made.” Such solidary debtor will
not be able to recover from the co-debtors the full amount already paid to the creditor, because
the right to recovery extends only to the proportional share of the other co-debtors, and not as to
the particular proportional share of the solidary debtor who already paid. In contrast, even as the
surety is solidarily bound with the principal debtor to the creditor, the surety who does pay the
creditor has the right to recover the full amount paid, and not just any proportional share, from
the principal debtor or debtors. Such right to full reimbursement falls within the other rights,
actions and benefits which pertain to the surety by reason of the subsidiary obligation assumed
by the surety. (Escaño, et al. v. Ortigas, Jr., G.R. No. 151953, June 29, 2007, Tinga, J).
Article 2047 itself specifically calls for the application of the provisions on solidary obligations
to suretyship contracts. Article 1217 of the Civil Code thus comes into play, recognizing the
right of reimbursement from a co-debtor (the principal debtor, in case of suretyship) in favor of
the one who paid (i.e., the surety). However, a significant distinction still lies between a joint and
several debtor, on one hand, and a surety on the other. Solidarity signifies that the creditor can
compel any one of the joint and several debtors or the surety alone to answer for the entirety of
the principal debt. The difference lies in the respective faculties of the joint and several debtor
and the surety to seek reimbursement for the sums they paid out to the creditor.
A guarantor who binds himself in solidum with the principal debtor under the provisions of the
second paragraph does not become a solidary co-debtor to all intents and purposes. There is a
difference between a solidary co-debtor and a fiador in solidum (surety). The latter, outside of
the liability he assumed to pay the debt before the property of the principal debtor has been
exhausted, retains all the other rights, actions and benefits which pertain to him by reason of the
fiansa; while a solidary so-debtor has no other rights than those bestowed upon him in Section 4,
Chapter 3, Title I, Book IV of the Civil Code.
The second paragraph of [Article 2047] is practically equivalent to the contract of suretyship.
The civil law suretyship is, accordingly, nearly synonymous with the common law guaranty; and
the civil law relationship existing between the co-debtors liable in solidum is similar to the
common law suretyship. (Tolentino, Civil Code of the Phils. (1992 ed.).
Right To Full Reimbursement By The Surety
The right under Article 2066, NCC which assures the guarantor who pays for a debtor must be
indemnified, such indemnity comprising of among others, the total amount of the debt.
Furthermore, Article 2067 of the Civil Code likewise establishes that the guarantor who pays is
subrogated by virtue thereof to all the rights which the creditor had against the debtor. (Escaño,
et al. v. Ortigas, Jr., G.R. No. 151953, June 29, 2007, Tinga, J).
NCC Refer Not Only To Guarantors But To Surety As Well
Article 2066 and 2067, NCC explicitly pertain to guarantors. The argument that the provisions
should not extend to sureties, especially in light of the qualifier in Article 2047 that the
provisions on joint and several obligations should apply to sureties is not correct. The reference
in the second paragraph of [Article 2047] to the provisions of Section 4, Chapter 3, Title I, Book
IV, on solidary or several obligations, however, does not mean that suretyship is withdrawn from
the applicable provisions governing guaranty. (Manila Surety & Fidelity Co. v. Barter
Construction & Co., et al., 53 Off. Gaz. 8836 & Arranz v. Manila Fidelity & Surety, Co., 53 Off.
Gaz. 7247). For if that were not the implication, there would be no material difference between
the surety as defined under Article 2047 and the joint and several debtors, for both classes of
obligors would be governed by exactly the same rules and limitations.
Accordingly, the right to indemnification and subrogation as established and granted to the
guarantor by Articles 2066 and 2067 extend as well to sureties as defined under Article 2047.
These rights granted to the surety who pays materially differ from those granted under Article
1217 to the solidary debtor who pays, since the indemnification that pertains to the latter the
share which corresponds to each debtor. (Escaño, et al. v. Ortigas, Jr., G.R. No. 151953, June 29,
2007).
When solidary debtor who pays is entitled to reimbursement.
If a solidary debtor pays the obligation in part, he can recover reimbursement from the co-
debtors only in so far as his payment exceeded his share in the obligation. This is precisely
because if a solidary debtor pays an amount equal to his proportionate share in the obligation,
then he in effect pays only what is due from him. If the debtor pays less than his share in the
obligation, he cannot demand reimbursement because his payment is less than his actual debt.
(Republic Glass Corp. v. Qua, G.R. No. 144413, July 30, 2004).
Death Not An Escape To Liability
Death is not a defense that he or his estate can set up to wipe out the obligations under the
performance bond. Consequently, petitioner as surety cannot use his death to escape its monetary
obligation under its performance bond. (Stronghold Insurance Company, Inc. vs. Republic –
Asahi Glass Corp., G.R. No. 147561, June 22, 2006).
Surety’s obligation is not original; but direct and primary to creditor
The surety’s obligation is not an original and direct one for the performance of his own act, but
merely accessory or collateral to the obligation contracted by the principal. Nevertheless,
although the contract of a surety is in essence secondary only to a valid principal obligation, his
liability to the creditor or promise of the principal is said to be direct, primary and absolute; in
other words, he is directly and equally bound with the principal. (Garcia vs. CA, 191 SCRA 439
(1990); IFC vs. Imperial Textile Mills, Inc., G.R. No. 160324, November 15, 2005).
Under the law and jurisprudence, the creditor may sue, separately or together, the principal
debtor and the surety, in view of the solidary nature of their liability. The death of the principal
debtor will not work to convert, decrease or nullify the substantive right of the solidary creditor.
Evidently, despite the death of the principal debtor, the creditor may still sue petitioner alone, in
accordance with the solidary nature of the latter’s liability under the performance bond.
(Stronghold Insurance Co., Inc. vs. Republic – Asahi Glass Corp., supra.).
Cabales, et al. v. CA, et al., G.R. No. 162421
A property was the subject of co-ownership. Some of the co-owners sold the whole property
without the consent of the two others, Nelson, a minor and his mother. Explaining the nature of
the sale, the SC ruled:
The sale insofar as their shares are concerned is unenforceable because it was entered into in the
name of another person by one who had not given authority. (Art. 1403(1), NCC). Nelson and
his mother, therefore, retained ownership over their undivided share of subject property.
(Cabales, et al. v. CA, et al., G.R. No. 162421, August 31, 2007).
What is suretyship?
It is an agreement whereby the surety guarantees the performance by another of an undertaking
or an obligation in favor of a third party. (Sec. 175)
GUARANTY AND SURETYSHIP
Article 2047. By guaranty, a person, called the guarantor, binds himself to the creditor to
fulfill the obligation of the principal debtor in case the latter should fail to do so.
If a person binds himself solidarily with the principal debtor, the provisions of Section 4,
Chapter 3, Title I of this Book shall be observed. In such case, the contract is called a suretyship.
GUARANTY
CHARACTERISTICS OF A GUARANTY
1. Accessory—because it is dependent for its existence upon the principal obligation
guaranteed by it
2. Subsidiary and conditional—it takes effect only when the principal debtor fails in his
obligation subject to limitation
3. Unilateral—
a. Gives rise only to the duty on the part of the guarantor in relation to the creditor
and not vice versa
b. It may be entered into even without the intervention of the principal debtor
4. Contract, which requires that the guarantor be a distinct person from the principal debtor
because a person cannot be the personal guarantor of himself
CLASSIFICATION OF GUARANTY
1. Guaranty in the broad sense—
a. Personal—guaranty properly so-called or guaranty in the strict sense. The guarantee
given is the credit given by the person who guarantees the fulfillment of the principal
obligation.
b. Real—the guaranty is property, movable or immovable
3. As to consideration
a. Gratuitous
b. Onerous
SURETYSHIP
> A relation which exists where one person has undertaken an obligation and another person
is also under a direct and primary obligation or other duty to a third person, who is entitled to but
one performance, and as between the two who are bound, the one rather than the other
should perform
> Contractual relation resulting from an agreement whereby one person, the surety, engages
to be answerable for a debt, default, miscarriage of another known as the principal
1. A solidary debtor, like a surety, STANDS FOR SOME OTHER PERSON.
2. Both debtor and surety, after payment, may require that they be REIMBURSED.
The difference is that the lender cannot go after the surety right away. There has to
be default on the part of the principal debtor before the surety becomes liable. If it were
mere solidarity among debtors, the creditor can go after any of the solidary debtors
on due date.
3. LIABILITY ARISES ONLY IF PRINCIPAL DEBTOR IS HELD LIABLE—If the
principal debtor and the surety are held liable, their liability to pay the creditor would be
solidary. But, the surety does not incur liability unless and until the principal debtor is held
liable.
a. A surety is bound by a judgment against the principal even though the party was not a
party to
the proceedings.
b. The creditor may sue, separately or together, the principal debtor and the surety
(since they are solidarily bound).
c. Generally, a demand or notice of default is not required to fix the surety’s liability.
d. An accommodation party (one who signs an instrument as maker, drawer, acceptor,
or indorser
without consideration and only for the purpose of lending his name) is, in effect, a surety.
He is thus
liable to pay the holder of the instrument, subject to reimbursement from the accommodated
party.
e. A surety bond is void where there is no principal debtor.
4. SURETY IS NOT ENTITLED TO EXHAUSTION—A surety is not entitled to the
exhaustion of the properties of the principal debtor since the surety assumes a solidary
liability for the fulfillment of the principal obligation.
5. THE UNDERTAKING IS TO THE CREDITOR, NOT TO THE PRINCIPAL
DEBTOR—The debtor cannot claim that the surety breached its obligation to pay for the
principal obligation because there is no obligation as between the surety and the debtor.
If the surety does not pay, the
principal debtor is still not relieved of his obligation.
7. PRIOR DEMAND BY THE CREDITOR UPON PRINCIPAL NOT REQUIRED—the right
of the creditor to proceed against the surety alone exists independently of his right to
proceed against the principal where both surety and principal are equally bound
8. SURETY IS NOT EXONERATED BY NEGLECT OF ANOTHER TO SUE
PRINCIPAL—mere want of diligence or forbearance doesn’t affect the creditor’s rights vis-à-
vis the surety, unless the surety requires him by appropriate notice to sue on the obligation.
The raison d’etre for the rule is that
there is nothing to prevent the creditor from proceeding against the principal at any time
Art. 2049. A married woman may guarantee an obligation without the husband’s
consent, but shall not thereby bind the conjugal partnership, except in cases provided by
law. (n)
Art. 2050. If a guaranty is entered into without the knowledge or consent, or
against the will of the principal debtor, the provisions of Articles 1236 and 1237 shall
apply. (n)
Always remember that a guaranty is unilateral. It exists for the benefit of the creditor
and not for the benefit of the debtor.
The creditor obviously has every right to take all possible means to secure the payment of
his credit
A person who pays without the knowledge or against the will of the debtor can recover
only insofar as the payment has been beneficial to the debtor AND he cannot demand the
creditor to subrogate him into his rights
If he becomes the guarantor with the knowledge and consent of the debtor, he is
subrogated by virtue thereof to all the rights which the creditor has against the debtor
Conventional Guaranty, Legal Guaranty or Judicial Guaranty, Gratuitous Guaranty, or
Guaranty by Onerous Title
Art. 2051. A guaranty may be conventional, legal or judicial, gratuitous, or by onerous title.
It may also be constituted, not only in favor of the principal debtor, but also in favor of
the other guarantor, with the latter’s consent, or without his knowledge, or even over his
objection. (1823)
Art. 2052. A guaranty cannot exist without an valid obligation.
Nevertheless, a guaranty may be constituted to guarantee the performance of a
voidable or an unenforceable contract. It may also guarantee a natural obligation. (1824a)
> It is indispensable for its existence that there must be a principal obligation
> So if the principal obligation is void, it follows that it is also void
1. A voidable contract inasmuch as such contract is binding unless it is annulled by a
proper action in court
2. An unenforceable contract because contract is not void
3. A natural obligation so that the contract may proceed against the guarantor although
he has no right of action against the principal debtor for the reason that the latter’s obligation
is not civilly enforceable
Art. 2053. A guaranty may also be given as security for future debts, the amount of
which is not yet known; there can be no claim against the guarantor until the debt is
liquidated. A conditional obligation may also be secured. (1825a)
> One which isn’t limited to a single transaction but which contemplates a future course of
dealings, covering a series of transactions generally for an indefinite time or until revoked
> Prospective in its operations and is generally intended to provide security with respect
to future transactions
> Future debts, even if the amount is not yet known, may be guaranteed but there can be no
claim against the guarantor until the amount of the debt is ascertained or fixed and
demandable
> Take note however that the abovementioned provision may be misleading in
sanctioning guarantees for future debts. What should be bore in mind is that there is
already an existing obligation that is being guaranteed. The guaranty would be void if
there is no existing obligation.
> If the principal obligation is subject to a suspensive condition, the guarantor is liable
only after the fulfillment of the condition
> If it is subject to a resolutory condition, the happening of the condition extinguishes both
the principal obligation and the guaranty
Art. 2054. A guarantor may bind himself for less, but not for more than the principal
debtor, both as regards the amount and the onerous nature of the conditions.
Should he have bound himself for more, his obligations shall be reduced to the limits
of that of the debtor. (1826)
1. Guaranty is a subsidiary and accessory contract—the guarantor cannot bind himself for
more than the principal debtor and even if he does, his liability shall be reduced to the limits of
that of the debtor
2. Interest, judicial costs, attorney’s fees as part of the damages may be recovered
a. The surety is made to pay not by reason of the contract but by reason of his failure
to pay when demanded and for having compelled the creditor to resort to the courts to obtain
payment
b. Interest doesn’t run from the time the obligation becomes due but from the filing of the
complaint
3. Penalty may be provided
Art. 2055. A guaranty is not presumed; it must be express and cannot extend to more than
what is stipulated therein.
If it be simple or indefinite, it shall compromise not only the principal obligation, but
also all its accessories, including the judicial costs, provided with respect to the
latter, that the guarantor shall only be liable for those costs incurred after he has
been judicially required to pay. (1827a)
> Requires the expression of consent on the part of the guarantor to be bound
> It cannot be presumed because of the existence of a contract or principal obligation
> Why this rule? The law wants not only that there be assurance that the guarantor has
the true intention to bind himself but also to make certain that on making it, he proceeded
with consciousness of what he was doing
> A guaranty must not only be expressed but must also be reduced to writing
> Falls under the Statute since it is a special promise to answer for the debt, default or
miscarriage of another
> It has to be strictly interpreted against the creditor and in favor of the guarantor and isn’t to
be extended beyond its terms or specified limits
> The rule of strictissimi juris commonly refers to an accommodation party. Why?
An accommodation surety acts without motive of pecuniary gain and hence, should be
protected against unjust pecuniary impoverishment by imposing on the principal duties
akin to those of a fiduciary. Take note further that this rule only applies once it is
established that the contract is one of suretyship
or guaranty.
IS A STIPULATION THAT SAYS THAT THE GUARANTY WILL SUBSIST ONLY
UNTIL MATURITY OF THE OBLIGATION VALID?
> Generally, no. Such a stipulation would defeat the purpose of a guaranty, which is to
answer for the default of the principal debtor. If the guaranty is only up to the date of
maturity, there is no way that the guarantor can be liable since default comes only at maturity
date.
1. DEFINITE GUARANTY—limited in whole or in part to the principal debt, to the
exclusion of the accessories.
If the amount to be paid or the service to be performed by the person guaranteed is specified
in a contract of guaranty, then the obligation of the guarantor extends no further than the sum
or services so specified, and extrinsic facts cannot be resorted to for the purpose of
enlarging the limit if the guarantor was ignorant of such facts.
GENERAL RULE: It is not necessary for the CREDITOR to expressly accept the contract of
guaranty since the contract is unilateral; only the guarantor binds himself to do something.
EXCEPTION: If the guarantor merely offers to become a guaranty, it does not become a
binding obligation unless the creditor accepts and notice of acceptance is given to the
guarantor. On the other hand, if the guarantor makes a direct or unconditional promise of
guaranty (and not merely an offer), there is no need for acceptance and notice of such
acceptance from the creditor.
3. He has sufficient property to answer for the obligation which he guarantees
> Qualifications need only be present at the time of the perfection of the contract
> The creditor may however demand another guarantor with the proper qualifications but he
may waive it if he chooses and hold the guarantor to his bargain
> Note in Article 2057 that it requires conviction for a crime involving dishonesty, but a
judicial declaration of insolvency is not necessary in order for the creditor to have the
right to demand another guarantor
SELECTION OF GUARANTOR
1. Specified person stipulated as guarantor—where the creditor has required and
stipulated that a specific person should be a guarantor, the substitution of a guarantor may not
be demanded because obviously, in such a case, the selection of the guarantor is a term of
the agreement and the creditor is bound thereby as a party
2. Guarantor selected by the principal debtor—the debtor answers for the integrity,
capacity and solvency of the former
3. Guarantor personally designated by the creditor—the responsibility should fall upon
the creditor and not on the debtor
> As a rule, an ordinary personal guarantor may demand exclusion of all the property
of debtor before he can be compelled to pay
> The creditor however may secure prior thereto a judgment against the guarantor, who shall
be entitled to a deferment of the execution of said judgment against him until after the
properties of the principal debtor shall have been first exhausted to satisfy the latter’s obligation
4. When he has absconded, or cannot be sued within the Philippines unless he has left a
manager or representative;
5. If it may be presumed that an execution on the property of the principal debtor would not
result in the satisfaction of the obligation.
Art. 2060. In order that the guarantor may make use of the benefit of exclusion, he must set it up
against the creditor upon the latter’s demand for payment from him, and point out to the
creditor available property of the debtor within Philippine territory, sufficient to cover the
amount of the debt. (1832)
Art. 2061. The guarantor having fulfilled all the conditions required in the preceding
article, the creditor who is negligent in exhausting the property pointed out shall suffer
the loss, to the extent of said property, for the insolvency of the debtor resulting from
such negligence. (1833a)
1. When demand to be made—only after judgment on the debt for obviously the
exhaustion of the principal’s property cannot even being to take place before judgment has
been obtained
2. Actual demand has to be made—the fact that the guarantor was joined in a suit
against the principal debtor necessarily means that a demand has already been made upon
him
> It isn’t enough that the guarantor claims the benefit of excussion
> As soon as he is required to pay, he must also point out to the creditor available property of
the debtor within the Philippines
DUTY OF CREDITOR TO RESORT TO ALL LEGAL REMEDIES
> Failure to comply with duty of creditor would mean that he would suffer the loss but only to
the extent of the value of said property, for the insolvency of the debtor
> The GENERAL RULE is that the guarantor, not being a joint contractor with the principal,
cannot be sued with his principal
> EXCEPTION: not required when it would serve merely to delay the ultimate accounting of
the guarantor
Art. 2062. In every action by the creditor, which must be against the principal debtor
alone, except in the cases mentioned in Article 2059, the former shall ask the court to notify
the guarantor of the action. The guarantor may appear so that he may, if he so desire, set up
such defenses as are granted him by law. The benefit of excussion mentioned in Article
2058 shall always be unimpaired, even if judgment should be rendered against the principal
debtor and the guarantor in case of appearance by the latter. (1834a)
1. SENT AGAINST PRINCIPAL—the creditor must sue the principal alone. The
guarantor cannot be sued together with his principal except when the guarantor is not entitled
to the benefit of excussion.
2. NOTICE TO GUARANTOR OF THE ACTION—the guarantor must be notified so that
he may appear, if he so desires, and set up the defenses he may want to offer
a. If the guarantor appears, he is still given the benefit of excussion even if judgment
is rendered against him and the principal debtor
b. If he doesn’t appear, he cannot set up the defenses which, by appearing, are allowed
him by
law, and it may no longer be possible for him to question the validity of the judgment
rendered
against the debtor
3. HEARING BEFORE EXECUTION CAN BE ISSUED AGAINST GUARANTOR
Art. 2063. A compromise between the creditor and the principal debtor benefits the
guarantor but does not prejudice him. That which is entered into between the guarantor
and the creditor benefits but does not prejudice the principal debtor. (1835a)
COMPROMISE
> Contract whereby the parties, by asking reciprocal concessions, avoid a litigation
or put an end to one already commenced
EFFECTS OF COMPROMISE
1. Where prejudicial—a contract binds only the parties thereto and not third
persons. Hence, a compromise cannot prejudice the guarantor or the debtor, as the case may
be, when he is not a party to such compromise.
2. Where in the nature of the stipulation in favor of third person—however, even if the
guarantor or debtor is not a party to such compromise, the same can still benefit him as it is
in the nature of a stipulation in favor of a third person which the guarantor or debtor may
accept unless it has been revoked before his acceptance
> Enjoys the right with respect to the debtor but also to the principal guarantor
Art. 2064. The guarantor of a guarantor shall enjoy the benefit of excussion, both with
respect to the guarantor and to the principal debtor. (1836)