GUARANTY AND SURETY

ART. 2047. By guaranty a person, called the guarantor, binds himself to the creditor to fulfi ll
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. (1822a)

Guaranty (def.) A contract whereby the guarantor binds himself to the creditor to fulfill the
obligation of the principal debtor in case the latter should fail to do so.
In a contract of guaranty, the parties are the guarantor and the creditor.

Characteristics of the Contract of Guaranty (A-SC-U-D)

• Accessory: It is dependent for its existence upon the principal obligation guaranteed by it.

• Subsidiary and Conditional: It takes effect only when the principal debtor fails in his
obligation.
• Unilateral:
a. It gives rise to obligations on the part of the guarantor in relation to the creditor
and not vice-versa. (Although after its fulfillment, the principal debtor should indemnify the
guarantor, but this obligation is only incidental)
b.It may be entered into even without the intervention of the principal debtor.
• Distinct Person: It requires that the person of the guarantor must be distinct from the person
of the principal debtor (you cannot guaranty your own debt). However, in a real guaranty, a
person may guarantee his own obligation with his own properties.
Classification of Guaranty
1. In the broad sense:
• personal: the guaranty is the credit given by the person who guarantees the fulfillment of the principal
obligation (guarantor)

• real: the guaranty is property.If the guaranty is immovable property: real mortgage or antichresis; If the
guaranty is movable property: pledge or chatter mortgage

2.As to origin:

• conventional: by agreement of the parties

• legal: imposed by law

• judicial: required by a court to guarantee the eventual right of one of the parties in a case
3.As to consideration:

• gratuitous: the guarantor does not receive anything for acting as guarantor
• onerous: the guarantor receives valuable consideration for acting as guarantor

3. As to the person guaranteed:

a. single: constituted solely to guarantee or secure performance of the

principal obligation