UP LAW BOC CREDIT TRANSACTIONS CIVIL LAW
Surety Guaranty [Art. 2049]
Exceptions:
principal. The
original contract of (1) With her husband’s consent, bind the
his principal is not his community or conjugal partnership
contract, and he is property
not bound to take (2) Without husband’s consent, in cases
notice of its non- provided by law, such as when the
performance guaranty has redounded to the benefit of
the family.
A surety will not be A guarantor is often
discharged, either by discharged by the
the mere indulgence mere indulgence of A guaranty need not be undertaken
of the creditor to the the creditor to the with the knowledge of the debtor [Art.
principal, or by want principal, and is 2050]
of notice of the usually not liable Guaranty is unilateral. It exists for the benefit
default of the unless notified of the of the creditor and not for the benefit of the
principal, no matter default of the principal debtor
how much he may be principal
injured thereby Creditor has every right to take all possible
A surety is the insurer A guarantor is the measures to secure payment of his credit—
of the debt, and he insurer of the guaranty can be constituted even against the
obligates himself to solvency of the will of the principal debtor
pay if the principal debtor and thus
does not pay binds himself to pay However, as regards paym ent m ade by
if the principal is a third person—
unable to pay
(1) If payment is without the knowledge or
against the will of the debtor—
A. NATURE AND EXTENT OF (a) Guarantor can recover only insofar as
GUARANTY the payment has been beneficial to
the debtor [Art. 1236]
A guaranty is generally gratuitous (b) Guarantor cannot compel the creditor
[Art. 2048] to subrogate him in his rights [Art.
General rule: Guaranty is gratuitous 1237]
Exception: When there is a stipulation to (2) If payment is with knowledge or consent
the contrary of the debtor: Subrogated to all the rights
which the creditor had against the debtor
On the cause of a guaranty contract
A guarantor or surety is bound by the same
consideration that makes the contract The guaranty must be founded on a
effective between the principal parties valid principal obligation [Art. 2052 (1)]
thereto. [Severino v. Severino, et al., G.R. No. Guaranty is an accessory contract: It is an
34642 (1931)] indispensable condition for its existence that
there must be a principal obligation. Hence, if
Guaranty or surety agreement is regarded the principal obligation is void, it is also void.
valid despite the absence of any direct
consideration received by the guarantor or
surety, such consideration need not pass A guaranty may secure the
directly to the guarantor or surety; a perform ance of a voidable,
consideration moving to the principal will unenforceable, and natural obligation
suffice. [Art. 2052(2)]
A guaranty may secure the performance of a:
General Rule: A married woman who is a
guarantor binds only her separate property (1) Voidable contract – such contract is
Page 428 of 574
