Explanation of Article 597
Articles (597 – 602) address the consequences of a guarantee between the guarantor and the debtor:
This article explains the first type of claim that the guarantor can bring against the debtor, which is the personal claim under the guarantee. The guarantor, whether jointly liable or not, can claim from the debtor what he has paid on his behalf and the expenses incurred in executing the guarantee contract, such as expenses paid in guiding the creditor to the debtor's assets when invoking the plea of excussion, as well as any expenses adjudicated against the guarantor for the benefit of the creditor, like the expenses of the creditor's claim against the guarantor.
For the guarantor to claim under the guarantee according to the provisions of the article, three conditions must be met:
The first condition: The guarantor must settle the debt on behalf of the debtor; the guarantor cannot claim against the debtor before settling the debt, by any means of settlement, whether by paying the debt, settling with a substitute, or through set-off or merger of obligations. However, if the creditor releases the guarantor or the guarantor's debt becomes time-barred without settlement, the guarantor is not considered to have settled or performed an act equivalent to settlement; thus, he cannot claim against the debtor.
If the settlement is partial and accepted by the creditor explicitly or implicitly, the guarantor can claim from the debtor what he has settled, and the creditor can also claim from the debtor to recover the remainder of his right. The creditor does not take precedence over the guarantor in this claim. If the debtor's assets are insufficient to satisfy both claims, they share with the other creditors against the debtor proportionally to their debts.
The second condition: The guarantee must be with the debtor's knowledge and without his opposition; if it is without the debtor's knowledge or with his knowledge but with opposition, the guarantor cannot claim against the debtor under the guarantee. However, he can claim under the doctrine of negotiorum gestio if its conditions are met, or under the doctrine of unjust enrichment according to its rules. Therefore, the paragraph was issued with the phrase (under the guarantee contract) to indicate that the provisions of the paragraph direct his right to claim under the guarantee, without preventing his right to claim under negotiorum gestio or unjust enrichment according to their established rules.
The paragraph directs his right to claim under the guarantee, without preventing his right to claim under negotiorum gestio or unjust enrichment according to their established rules.
Related To
Article 597
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A surety may, under the suretyship contract, have recourse against the debtor for any payment he makes on the debtor’s behalf and for any incurred expenses required by the contract, provided that the suretyship is made with the debtor’s knowledge and consent.
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If the surety pays a debt prior to its maturity date, he may not, prior to the maturity date, have recourse against the debtor for the early payment he makes, unless such payment is made with the debtor’s authorization.