Explanation of Article 594
The article included a specific form of the plea of excussion, in which there is a real guarantee, such as a mortgage or lien, established on property owned by the debtor before the suretyship contract or concurrently with it. The guarantor, if not jointly liable, may request execution against the property burdened with the real guarantee before execution against his own assets. In this specific form of the plea of excussion, it is not required that the real guarantee be sufficient to cover the entire debt, as in the general form of the plea of excussion. Even if the real guarantee is not sufficient to cover the entire debt, the guarantor may request execution against the real guarantee, allowing the creditor to satisfy part of his claim, with the remaining debt being satisfied by the guarantor.
In this form, it is not required that the real guarantee be allocated solely to secure the guaranteed debt; it may also secure other debts.
It is apparent from the text that this specific form of the plea of excussion requires four conditions:
The first condition: The guarantor must not be jointly liable.
The second condition: There must be a real guarantee provided by the debtor to secure his debt before or concurrently with the suretyship, as the guarantor relied on this guarantee in his suretyship. If the guarantee is provided after the suretyship, it cannot be said that the guarantor relied on this guarantee in his suretyship.
The third condition: The guarantor must not have waived his right to this plea; this right is established for his benefit, and he may waive it explicitly or implicitly in the suretyship contract or thereafter.
The fourth condition: The guarantor must invoke this plea; the court cannot rule on it on its own initiative.
Related To
Article 594
If the debt is secured by a collateral prior to or at the time of the suretyship and the surety is not a solidary debtor, the surety’s property may not be proceeded against prior to proceeding against the property securing the debt.