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Civil Law

Explanation of Article 588

Explanation of Article 588

The article refers to the first situation in which the guarantor is discharged from the debt, and the creditor does not have the right to demand the guarantor or revert to him, despite the guaranteed debt remaining with the debtor.

The first paragraph clarifies that the guarantor, whether jointly liable with the debtor or not, is discharged from the guarantee to the extent that the creditor, through his fault, has lost the securities of the debt. It is evident that the guarantor, according to Article (559), has the right to substitute the creditor in the securities of the debt, and the loss of these securities due to the creditor's fault deprives the guarantor of this right. Examples include the creditor relinquishing a mortgage established for the benefit of the debt, neglecting to take necessary measures to preserve the mortgage, delaying in collecting his right from debtors over whom he had priority, or being negligent with one of the guarantors.

The second paragraph clarifies that the securities whose loss results in the discharge of the guarantor include all securities allocated for the benefit of that debt, whether they existed before the belief in the guarantee or were determined after it, whether they are contractual securities like registered or possessory mortgages, or statutory securities like a lien, and whether they are personal securities like another guarantor or real securities like a mortgage and lien.

According to what the article stipulates:

  1. The guarantor is not discharged if the fault was not due to the creditor's action; for instance, if the securities were lost due to the fault of a third party or the guarantor himself.

  2. The guarantor is also not discharged from the fault committed by the creditor in neglecting to obtain a new security, which is inferred from the phrase (allocated to secure the debt).

  3. The guarantor is likewise not discharged if the loss of securities due to the creditor's fault did not harm the guarantor; for example, if the creditor relinquishes a mortgage that is lower in rank and thus does not benefit him in collecting his right.

  4. The guarantor is also not discharged if there is an agreement between the creditor and the guarantor that he will not substitute him in those securities or that the guarantor will not insist on his discharge; as the article did not make the stipulated ruling a matter of public order, it is permissible to agree otherwise.

Related To

Article 588

  1. A surety shall be discharged from liability to the extent of the debt securities lost due to the creditor's fault.

  2. Debt securities shall mean any security allocated to secure a debt, even if offered after the suretyship is established, as well as any security provided for by law.