Explanation of Article 602
The article clarifies the effect of the debtor concealing the reasons for the discharge of the guaranteed debt from the guarantor who has settled the debt; such as if the debtor had paid the debt to the creditor, or if the debt had been discharged by set-off, merger, prescription, or any other reason for the discharge of the debt, and yet did not inform the guarantor of this, or if the debtor had invoked a reason for the discharge of the debt against the creditor and was not granted such discharge, and did not inform the guarantor of what he had invoked; in this case, if the guarantor settles the debt with the creditor, he may seek recourse against the debtor, and his right to recourse remains valid, and the debtor is not entitled to raise defenses against the guarantor that he had against the creditor, such as claiming that the debt had been paid, prescribed, or discharged for any reason.
The application of the article's provision requires that the debtor has not informed the guarantor of the discharge of the debt; if he has informed him, the guarantor cannot seek recourse against him, unless he had sought permission to settle the debt knowing the reason and was granted such permission, or if the settlement of the debt was to protect the guarantor's rights against the creditor; such as if the creditor had filed a lawsuit against the guarantor for the debt, rejected the defense of prescription, and the guarantor feared a judgment against him for the debt and thus settled it; in this case, the guarantor has the right to seek recourse against the debtor for the debt, as the reason for the guarantor's recourse against the debtor is not interrupted in this context.
The provision in this article is not of public order; it is permissible to agree otherwise; however, the agreement between the debtor and the guarantor must not harm the rights of the creditor.
Related To
Article 602
A surety for solidary debtors shall have the right of recourse against any of them for the full amount of the debt he paid.