Short answer. Generally yes. Article 2062 requires that the creditor's action be against the principal debtor alone, except in the cases in Article 2059, and that the creditor ask the court to notify the guarantor of the suit. The guarantor may then appear and set up whatever defences the law gives him.
What the law says
In every action by the creditor, which must be against the principal debtor alone, except in the cases mentioned in article 2059, the former shall ask the court to notify the guarantor of the action
Civil Code, Article 2062 — Notice of Action to the Guarantor. Read the full provision →
The suit is against the debtor, not the guarantor
A guaranty is a subsidiary undertaking, and the procedure reflects that. Article 2062 directs that In every action by the creditor, which must be against the principal debtor alone, except in the cases mentioned in article 2059, the former shall ask the court to notify the guarantor of the action. The creditor sues the person who actually owes the debt. The guarantor is not dragged in as a co-defendant in the ordinary case; his liability is a fallback, to be reached only after the debtor's, so the primary action targets the debtor and the guarantor is kept informed rather than made the direct object of the suit.
Notice, and the right to appear
Being notified is not an empty courtesy. The article continues that the guarantor may appear so that he may, if he so desire, set up such defenses as are granted him by law. He is given the chance to enter the case and defend — to raise excussion, to contest the debt, to assert whatever the law allows a guarantor. This matters because a judgment against the debtor can affect him later, and it would be unfair to let the case be fought and decided while the person whose money may ultimately be at stake had no opportunity to be heard. The choice to appear is his.
The excepted cases
The requirement that the action be against the debtor alone is not absolute. Article 2062 carves out the cases mentioned in article 2059 — the situations in which the ordinary subsidiary treatment does not apply and the guarantor may be pursued more directly, such as where the benefit of excussion has been lost or was never available to him. Where one of those cases exists, the reasoning behind suing the debtor first falls away. So whether the creditor must proceed against the debtor alone depends on whether the guaranty is an ordinary one or falls within those exceptions.
What to do if you are the guarantor
If you receive notice that the creditor has sued the debtor, treat it as your opening to protect yourself, not as someone else's problem. Appearing lets you raise the defences the law gives a guarantor while the case is still live, rather than discovering after judgment that your position was decided without you. Weigh whether to appear with that in mind — and note that, as the next question addresses, choosing to appear does not cost you the benefit of excussion, so defending the case and preserving your subsidiary standing are not in conflict.
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 →