Does a guarantor keep the benefit of excussion even if judgment is rendered against both the debtor and himself?

A judgment against both does not waive excussion

There is a natural fear that appearing in the creditor's case, and having judgment go against you alongside the debtor, silently forfeits your standing as a mere guarantor. Article 2062 lays that fear to rest: The benefit of excussion mentioned in article 2058 shall always be unimpaired, even if judgment should be rendered against the principal debtor and the guarantor in case of appearance by the latter. The word is always. A judgment naming both of you settles who is liable; it does not convert your subsidiary liability into a direct one, and it leaves untouched your right to have the debtor's property go first.

What excussion actually is

The benefit of excussion is the guarantor's right to require that the creditor exhaust the property of the principal debtor before he can be made to pay. It is what marks an ordinary guaranty off from a solidary undertaking: the guarantor answers only for what the debtor's own assets cannot cover. A judgment establishing that both owe the debt does not disturb that ordering. Liability and the order of execution are two different questions, and Article 2062 keeps them apart, so being adjudged liable does not mean being first in line to pay.

Why appearance is safe

The provision speaks of judgment against the guarantor in case of appearance by the latter, and that is the reassuring part. Having been notified of the creditor's action, a guarantor might hesitate to appear and defend for fear of exposing himself. The article removes the penalty for participating: you can enter the case, raise your defences, and even have judgment go against you, all without surrendering excussion. The right survives the judgment and can still be asserted afterwards, so defending yourself and preserving your fallback position are not a trade-off you are forced to make.

Asserting it at execution

Because the benefit remains unimpaired, the practical moment to press it comes when the creditor moves to enforce the judgment against you. That is when you insist the debtor's property be pursued and exhausted first, pointing out assets that can satisfy the debt, rather than allowing your own to be taken while the debtor's remain untouched. Understanding that a joint judgment did not quietly erase the right is what lets a guarantor stand on it with confidence at the stage where it counts, instead of assuming it was lost with the verdict.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• Benjamin Bitanga vs. Pyramid Construction Engineering Corporation, G.R. No. 173526, August 28, 2008 — read the decision on LawPhil →
• Pacionara C. Baylon vs. Court of Appeals & Leonila Tomacruz, G.R. No. 109941, August 17, 1999 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 2062 — Notice of Action to the Guarantor