Explanation of Article 590
The article refers to the third case in which the creditor is not entitled to revert to the guarantor, and the guarantor is discharged from the guarantee whether he is jointly liable or not with the debtor, despite the guaranteed debt remaining with the debtor.
The article clarifies that if the debtor's assets liquidation procedures are initiated due to bankruptcy, and the creditor does not claim against the debtor, the guarantor is discharged from the debt to the extent that he would have recovered from the debt had he participated in the debtor's asset liquidation procedures. This is a consequence of the creditor's negligence and failure, which caused harm to the guarantor by depriving him of the opportunity to recover some of his rights due to his inability to participate in the liquidation procedures. Therefore, in accordance with general rules, the guarantor should be compensated for the damage he suffered; the article's ruling indicates that the best compensation is the forfeiture of the creditor's right to revert to the guarantor to the extent that the creditor could have recovered from the debtor's bankruptcy, assuming he participated in it.
Upon examining the provisions contained in articles (588) - (590), we find that they are decided in favor of the guarantor and are not of public order; this results in two consequences:
The first consequence is that the guarantor is not discharged in the three cases if he does not assert his discharge, whether through an initial claim he raises against the creditor or by way of defense in response to a claim brought against him by the creditor.
The second consequence is that the guarantor is not discharged if there is an agreement that the guarantor will not assert his discharge in any of the three cases.
Related To
Article 590
If a liquidation proceeding is initiated against a debtor in accordance with legal provisions and the creditor fails to demand payment of his debt under such proceeding, his right of recourse against the surety shall be forfeited to the extent of what he could have recovered had he demanded payment of the debt by the debtor.