Explanation of Article 592
The subject of this plea arises when the creditor obtains an enforceable instrument against the debtor's assets and begins execution against his assets. The plea of excussion requires four conditions:
The first condition: The guarantor must not be jointly liable; if it is stipulated in the guarantee contract that he is jointly liable with the debtor, then this plea is not applicable.
The second condition: The guarantor must not have waived his right to this plea; this right is established for his benefit, so he may waive it explicitly or implicitly in the guarantee contract or thereafter.
The third condition: The guarantor must invoke this plea; the court cannot rule on it on its own initiative.
The fourth condition: The guarantor must, at his own expense, guide the creditor to assets of the debtor that satisfy the entire debt, as stipulated in the following Article (592).
Thus, it becomes clear that each type of plea is independent with its conditions; for example, if the creditor demands both the guarantor and the debtor, the guarantor has no right to plead for demanding the debtor first, but he retains the plea of excussion. If the guarantor does not know of any assets of the debtor that satisfy the entire debt, he cannot plead excussion, but he retains the plea of demanding the debtor first.
The first paragraph clarified the condition for the validity of the guarantor's plea of excussion of the debtor as stated in Article (591); which is that he must, at his own expense, guide the creditor to assets of the debtor that satisfy the entire debt and are enforceable; to fulfill this condition, four matters are required:
The first matter: The creditor must be directed to assets of the debtor from which payment can be made; if the debtor is insolvent or evidently unable to pay the debt, this condition is clearly unmet.
The second matter: These assets must be enforceable; assets are not enforceable if they are outside the Kingdom due to the difficulty of access and the complexities of foreign law, nor are they enforceable if the assets are disputed, or if the debtor's assets cannot be seized or executed upon.
The third matter: The assets to which the creditor is guided must be sufficient to satisfy the entire debt; saying otherwise forces the creditor to accept partial payment, which is unacceptable according to Article (273) of the general rules. Moreover, it would compel the creditor to execute anew against the guarantor, multiplying the procedures, burdening the creditor, and contradicting the purpose of the guarantee. However, if the debtor's assets are insufficient for full payment, the creditor may take execution procedures against both the debtor and the guarantor, executing against the former for the entire debt and against the guarantor for the remainder. This does not force the creditor to accept partial payment as long as he executes his full right, and the duplication of procedures in this case is a necessary result of the multiplicity of debtors and the lack of solidarity between them.
The fourth matter: The expenses of guiding the creditor to the debtor's assets are borne by the guarantor.
The second paragraph clarified the effect of the guarantor guiding the creditor to the debtor's assets, meeting the requirements outlined in the first paragraph; this effect is the suspension of execution procedures against the guarantor's assets. Indeed, as soon as the guarantor pleads excussion and before it is adjudicated, the court suspends execution procedures against the guarantor until it is adjudicated. In this case, the creditor must take execution procedures against the assets to which the guarantor guided him in a timely manner before another creditor of the debtor competes for them, or the debtor hides or dissipates his assets. If the creditor fails to take execution procedures against the assets to which the guarantor guided him, he is liable to the guarantor for what he would have obtained from the debtor's assets had he taken the necessary procedures in a timely manner.
Related To
Article 592
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If the surety demands discussion, he shall, at his own expense, inform the creditor of the property owned by the debtor which is sufficient to satisfy the entire debt. This shall not include property located outside the Kingdom or property subject to a dispute.
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In cases in which the surety informs the creditor of the debtor’s property, the creditor shall be liable to the surety for the debtor’s insolvency which results from the creditor’s failure to take the necessary measures in a timely manner.