Explanation of Article 578
The article defines the contract of guarantee as a contract whereby the guarantor commits to the creditor to fulfill a debt on behalf of the debtor if the debtor does not fulfill it. From this, several characteristics of the contract of guarantee can be derived:
The first characteristic: The contract of guarantee is concluded between only two parties, the guarantor and the creditor; however, the contract establishes effects in the relationships of three parties: the guarantor with the creditor, the guarantor with the debtor, and the guarantor with other guarantors.
The second characteristic: The guarantor's obligation in the contract of guarantee is a subsidiary obligation to the debtor's obligation.
The third characteristic: It is a contract of personal guarantee; the guarantor adds his liability to that of the debtor; the contract of guarantee does not create a real right for the creditor.
The fourth characteristic: It is a gratuitous contract; this is not affected by some cases where the debtor offers an amount to the guarantor in exchange for bearing the burden of the guarantee; because the parties to the contract are the guarantor and the creditor, and the debtor is an external element to the contract.
The fifth characteristic: It is a consensual contract, which does not require a specific form or condition for its conclusion.
The sixth characteristic: It is an accessory contract; the guarantor's obligation follows the debtor's obligation in existence, validity, termination, acceleration, and deferment, and the guarantor's obligation cannot be for an amount greater than the debtor's obligation. This does not mean that the guarantor's obligation is conditional upon the debtor's default; rather, the guarantor's obligation is absolute because the condition is an incidental matter upon which the obligation is suspended, whereas the suspension of the guarantor's obligation on the debtor's non-fulfillment is the essence of the guarantee, and the suspension of the guarantor's obligation can only be interpreted based on the principle of the accessory nature of the guarantee.
The seventh characteristic: It is a contract binding on one side, which is the guarantor; despite the obligations imposed by some articles of this chapter on the creditor, they are, in reality, duties on the creditor to take to claim his right from the guarantor and are not obligations on him in the strict sense.
Related To
Article 578
Suretyship is a contract under which a surety binds himself to a creditor to fulfill the obligation of a debtor if he fails to do so.