Explanation of Article 603
The article addresses the provisions related to the debtor's recourse to the guarantor through a personal lawsuit. The debtor may file a lawsuit against the guarantor and request the court to order the guarantor to fulfill the debt or provide a guarantee. The debtor may resort to this for several reasons, including: the debt has become due, and the debtor wants to expedite clearing his liability or recover what he has given as guarantees, or the guarantor has committed to fulfilling the debt, or the creditor has warned the debtor to fulfill the debt, causing the debtor to bear the costs of the lawsuit, threatening his commercial position if he is a trader, or fearing bankruptcy; thus, he wants to expedite the fulfillment of the debt or clearing his liability.
The purpose of the ruling is to achieve the interest in settling the disturbed legal positions, which is to obligate the guarantor who guaranteed the debtor to fulfill the debt on his behalf, or to provide the guarantee to the debtor as follows:
The first matter: The guarantor is obliged to fulfill the debt or deposit it with the competent authority or provide a guarantee; the guarantee may be a surety, a mortgage, or other types of guarantees, and this matter is not subject to the agreement of the contracting parties but rather to the court's ruling.
The second matter: The guarantor's fulfillment of the debt, its deposit, or providing the guarantee must be based on a judicial ruling; merely demanding the guarantor by the debtor is not sufficient.
Five conditions are required to obligate the guarantor according to the article:
The first condition: The debt must have become due; this means the due date of the original debt, not the debt that the guarantor has on the debtor in case of fulfillment.
The second condition: The debtor must be exposed to insolvency; whether it is actual or legal insolvency; if the debtor is solvent, this ruling does not apply, as there is no interest for the debtor in this; the debt is still in his liability, and he is still able to fulfill it; and there is no interest for the guarantor who originally seeks to clear his liability from the debt.
The third condition: The guarantee must have been made without the debtor's knowledge; if the guarantee was made with his knowledge, he cannot have recourse to the guarantor.
The fourth condition: The debtor must have filed his lawsuit against the guarantor before the debt becomes due; if he filed it after the debt became due, he cannot do so.
The fifth condition: The debt must not have been extinguished; if the debt has been extinguished by one of the original reasons for extinguishing the debt, the ruling does not apply.
It should be noted that the ruling of the article is not of public order; it is permissible to agree otherwise explicitly or implicitly.
Related To
Article 603
The surety shall be discharged from liability upon the discharge of the debtor. The surety may, even if he is a solidary debtor, assert all the defenses available to the debtor except for the debtor’s partial incompetence of which the surety was aware at the time of concluding the contract.