Vous êtes sur la page 1sur 6

I.

NATURE and EXTENT that the obligation is indeed solidary in character to prove such
fact with a preponderance of evidence.
A. Escao v. Ortigas, Jr.
526 SCRA 26 (June 29, 2007) Note that Article 2047 itself specifically calls for the
application of the provisions on joint and solidary obligations to
Facts: suretyship contracts. Article 1217 of the Civil Code thus comes
On April 28, 1980, Private Development Corporation of the into play, recognizing the right of reimbursement from a co-
Philippines (PDCP) entered into a loan agreement with Falcon debtor (the principal debtor, in case of suretyship) in favor of the
Minerals, Inc. (Falcon) amounting to $320,000.00 subject to terms one who paid (i.e., the surety).[However, a significant distinction
and conditions. [Nagpautang ang PDCP sa Falcon ng $320K] still lies between a joint and several debtor, on one hand, and a
surety on the other. Solidarity signifies that the creditor can
On the same day, 3 stockholders-officers of Falcon: Ortigas Jr., compel any one of the joint and several debtors or the surety
George A. Scholey, and George T. Scholey executed an alone to answer for the entirety of the principal debt. The
Assumption of Solidary Liability to assume in [their] individual difference lies in the respective faculties of the joint and several
capacity, solidary liability with [Falcon] for due and punctual debtor and the surety to seek reimbursement for the sums they
payment of the loan contracted by Falcon with PDCP. paid out to the creditor. In the case of joint and several debtors,
Article 1217 makes plain that the solidary debtor who effected
Two (2) separate guaranties were executed to guarantee the payment to the creditor may claim from his co-debtors only
payment of the same loan by other stockholders and officers of the share which corresponds to each, with the interest for the
Falcon, acting in their personal and individual capacities. One payment already made. Such solidary debtor will not be able to
guaranty was executed by Escao, Silos, Silverio, Inductivo and recover from the co-debtors the full amount already paid to the
Rodriguez. creditor, because the right to recovery extends only to the
proportional share of the other co-debtors, and not as to the
Two years later, an agreement developed to cede control of particular proportional share of the solidary debtor who already
Falcon to Escao, Silos and Matti. Contracts were executed paid. In contrast, even as the surety is solidarily bound with the
whereby Ortigas, George A. Scholey, Inductivo and the heirs of principal debtor to the creditor, the surety who does pay the
then already deceased George T. Scholey assigned their shares of creditor has the right to recover the full amount paid, and not
stock in Falcon to Escao, Silos and Matti. An Undertaking dated just any proportional share, from the principal debtor or debtors.
June 11, 1982 was executed by the concerned parties, namely: Such right to full reimbursement falls within the other rights,
with Escao, Silos and Matti as SURETIES and Ortigas, Inductivo actions and benefits which pertain to the surety by reason of the
and Scholeys as OBLIGORS subsidiary obligation assumed by the surety.

Falcon eventually availed of the sum of $178,655.59 from the *Petitioners and Matti are jointly liable to Ortigas, Jr. in the
credit line extended by PDCP. It would also execute a Deed of amt. of P1.3M; Legal interest of 12% per annum on P 1.3M
Chattel Mortgage over its personal properties to further secure computed from March 14, 1994. Assailed rulings are
the loan. However, Falcon subsequently defaulted in its affirmed. Costs against petitioners
payments. After PDCP foreclosed on the chattel mortgage, there
remained a subsisting deficiency of Php 5,031,004.07 which
falcon did not satisfy despite demand.
B. Asset Builders vs Stronghold
Issue: Whether the obligation to repay is solidary, as contended Asset Builders Corp (ABC) obligee, petitioner
by respondent and the lower courts, or merely joint as argued by Lucky Star Drilling & Construction Corporation (Lucky Star) -
petitioners. obligor
Stronghold Insurance Company (Stronghold) surety,
Held/Ruling: respondent
In case, there is a concurrence of two or more creditors
or of two or more debtors in one and the same obligation, FACTS: ABC entered into an agreement with Lucky Star as part of
Article 1207 of the Civil Code states that among them, [t]here is the completion of its project to construct the ACG Commercial
a solidary liability only when the obligation expressly so states, or Complex. Lucky Star was to supply labor, materials, tools, and
when the law or the nature of the obligation requires solidarity. equipment including technical supervision to drill one (1)
Article 1210 supplies further caution against the broad exploratory production well on the project site.
interpretation of solidarity by providing: The indivisibility of an
obligation does not necessarily give rise to solidarity. Nor does To guarantee faithful compliance with their agreement, Lucky
solidarity of itself imply indivisibility. These Civil Code provisions Star engaged respondent Stronghold which issued two (2) bonds
establish that in case of concurrence of two or more creditors or in favor of petitioner ABC.
of two or more debtors in one and the same obligation, and in
the absence of express and indubitable terms characterizing the ABC paid Lucky Star P575,000.00 as advance payment,
obligation as solidary, the presumption is that the obligation is representing 50% of the contract price. Lucky Star, thereafter,
only joint. It thus becomes incumbent upon the party alleging commenced the drilling work.
CRED TRANS digests GUARANTY & SURETYSHIP (Art 2047-2084) Page 1 of 6
On agreed completion date, Lucky Star managed to accomplish
only 10% of the drilling work. ABC sent a demand letter to Lucky In the case at bench, when Lucky Star failed to finish the drilling
Star for the immediate completion of the drilling work. However, work within the agreed time frame despite petitioners demand
Lucky Star failed to fulfill its obligation. for completion, it was already in delay. Due to this default, Lucky
Stars liability attached and, as a necessary consequence,
ABC sent Notice of Rescission of Contract with Demand for respondents liability under the surety agreement arose.
Damages to Lucky Star and a Notice of Claim for payment to
Stronghold to make good its obligation under its bonds. Undeniably, when Lucky Star reneged on its undertaking with the
petitioner and further failed to return the P575,000.00
Despite notice, ABC did not receive any reply either from Lucky downpayment that was already advanced to it, respondent, as
Star or Stronghold, prompting it to file its Complaint for surety, became solidarily bound with Lucky Star for the
Rescission with Damages against both before the RTC. repayment of the said amount to petitioner.

RTC rendered the assailed decision ordering Lucky Star to pay Contrary to the trial courts ruling, respondent insurance
ABC but absolving Stronghold from liability. Relevant parts of the company was not automatically released from any liability when
decision reads: The surety bond and performance bond petitioner resorted to the rescission of the principal contract for
executed by defendants Lucky Star and Stronghold Insurance are failure of the other party to perform its undertaking. Precisely,
in the nature of accessory contracts which depend for its the liability of the surety arising from the surety contracts comes
existence upon another contract. Thus, when the agreement to life upon the solidary obligors default. It should be
between the plaintiff Asset Builders and defendant Lucky Star emphasized that petitioner had to choose rescission in order to
was rescinded, the surety and performance bond were prevent further loss that may arise from the delay of the progress
automatically cancelled. of the project. Without a doubt, Lucky Stars unsatisfactory
progress in the drilling work and its failure to complete it in due
Thus, Asset Builders filed this present petition for review on time amount to non-performance of its obligation.
certiorari assailing decision of RTC which orders defendant Lucky
Star to pay petitioner Asset Builders the sum of P575,000.00 with In fine, respondent should be answerable to petitioner on
damages, but absolving respondent Stronghold Insurance of any account of Lucky Stars non-performance of its obligation as
liability on its Surety Bond and Performance Bond. guaranteed by the performance bond.
Issue: Whether or not respondent insurance company, as surety,
can be held liable under its bonds. Finally, Article 1217 of the New Civil Code acknowledges the
right of reimbursement from a co-debtor (the principal co-
Held: Yes. debtor, in case of suretyship) in favor of the one who paid (the
surety). Thus, respondent is entitled to reimbursement from
As provided in Article 2047, the surety undertakes to be bound Lucky Star for the amount it may be required to pay petitioner
solidarily with the principal obligor. That undertaking makes a arising from its bonds.
surety agreement an ancillary contract as it presupposes the
existence of a principal contract. Although the contract of a WHEREFORE, Decision of the RTC, is AFFIRMED with
surety is in essence secondary only to a valid principal obligation, MODIFICATION. Respondent Stronghold Insurance is hereby
the surety becomes liable for the debt or duty of another declared jointly and severally liable with Lucky Star for the
although it possesses no direct or personal interest over the payment of P575,000.00 and the payment of P345,000.00 on the
obligations nor does it receive any benefit therefrom. Let it be basis of its performance bond.
stressed that notwithstanding the fact that the surety contract is
secondary to the principal obligation, the surety assumes liability
as a regular party to the undertaking. C. CASTELLVI DE HIGGINS VS. SELLNER
41 PHIL. 142
Suretyship, in essence, contains two types of relationship the MALCOLM, J.
principal relationship between the obligee (petitioner) and the
obligor (Lucky Star), and the accessory surety relationship Facts
between the principal (Lucky Star) and the surety (respondent).
In this arrangement, the obligee accepts the suretys solidary This is an action brought by plaintiffs to recover from defendant
undertaking to pay if the obligor does not pay. Such acceptance, the sum of P10,000. The brief decision of the trial court held that
however, does not change in any material way the obligees the suit was premature, and absolved the defendant from the
relationship with the principal obligor. Neither does it make the complaint, with the costs against the plaintiffs. Sellner wrote;
surety an active party to the principal obligee-obligor
relationship. Thus, the acceptance does not give the surety the I will, within fifteen days after notice of such default, pay you in
right to intervene in the principal contract. The suretys role cash the sum of P10,000 and interest upon your surrendering to
arises only upon the obligors default, at which time, it can be me the three thousand shares of stock of the Keystone Mining Co.
directly held liable by the obligee for payment as a solidary held by you as security for the payment of said note.
obligor.
CRED TRANS digests GUARANTY & SURETYSHIP (Art 2047-2084) Page 2 of 6
Issue amount of P12,800 and the following endorsement in
the English language appears upon the contract:
Determination of defendant's status in the transaction referred "MANILA, July 15, 1916.
to. Plaintiffs contend that he is a surety; defendant contends that
he is a guarantor. Plaintiffs also admit that if defendant is a "For value received we hereby
guarantor, articles 1830, 1831, and 1834 of the Civil Code govern. guarantee compliance with the terms and
conditions as outlined in the above contract.

Held "FIDELITY & SURETY COMPANY OF


The points of difference between a surety and a guarantor are THE PHILIPPINE ISLANDS.
familiar to American authorities. A surety and a guarantor are (Sgd.) "OTTO VORSTER,
alike in that each promises to answer for the debt or default of
another. A surety and a guarantor are unlike in that the surety "Vice-President,"
assumes liability as a regular party to the undertaking, while the - Machetti constructed the building under the supervision
liability as a regular party to upon an independent agreement to of architects representing the Hospicio de San Jose.
pay the obligation if the primary pay or fails to do so. A surety is - Subsequently it was found that the work had not been
charged as an original promissory; the engagement of the carried out in accordance with the specifications which
guarantor is a collateral undertaking. The obligation of the surety formed part of the contract and that the workmanship
is primary; the obligation of the guarantor is secondary. was not of the standard required, and
It is perfectly clear that the obligation assumed by defendant was the Hospicio de San Jose therefore refused to pay the
simply that of a guarantor, or, to be more precise, of the fiador balance of the contract price.
whose responsibility is fixed in the Civil Code. The letter of Mr. - Machetti thereupon brought this action
Sellner recites that if the promissory note is not paid at maturity, - the Hospicio de San Jose answered the complaint and
then, within fifteen days after notice of such default and upon presented a counterclaim for damages for the partial
surrender to him of the three thousand shares of Keystone noncompliance with the terms of the agreement, in the
Mining Company stock, he will assume responsibility. Sellner is total sum of P71,350.
not bound with the principals by the same instrument executed - Machetti was declared insolvent under Insolvency law.
at the same time and on the same consideration, but his - The Hospicio de San Jose filed a motion asking that the
responsibility is a secondary one found in an independent Fidelity and Surety Company be made cross-defendant
collateral agreement, Neither is Sellner jointly and severally liable to the exclusion of Machetti and that the proceedings
with the principal debtors. be continued as to said company, but still remain
suspended as to Machetti. This motion was granted1.
- The Hospicio filed a complaint against the Fidelity and
D. Surety Company asking for a judgment for P12,800
ROMULO MACHETTI, plaintiffappellee, vs. HOSPICIO DE SAN J against the company upon its guaranty.
OSE, defendant and appellee, and FIDELITY & SURETY
COMPANY OF THE PHILIPPINE ISLANDS, defendant-appellant.
CFI:
- rendered judgment against the Fidelity and Surety
[G.R. No. L-16666. April 10, 1922.] Company (FSC) for P12,800 in accordance with the
complaint. FSC appealed.

Theme: LIABILITY OF GUARANTOR; INSOLVENCY OF


Issue: whether FSC, being a guarantor, be compelled to pay.
PRINCIPAL. A guarantor cannot be compelled to pay until
it is shown that the principal is unable to pay and such
inability is not sufficiently shown by the mere fact that he
Ruling:
has been declared insolvent under the present Insolvency
Law in which the extent of the insolvent's inability to pay is - the court below erred in proceeding with the case
not determined until the final liquidation of his estate. against the guarantor while the proceedings were
suspended as to the principal. The guaranty in the
present case was for a future debt of unknown amount
Facts: and even regarding the guaranty as an
ordinary fianza under the Civil Code, the surety cannot
- Romulo Machetti, by a written agreement, undertook to
be held responsible until the debt is liquidated. (Civil
construct a building for the Hospicio de San Jose, the
Code, art. 1825.)
contract price being P64,000.
- One of the conditions of the agreement was that the
contractor should obtain the "guarantee" of the Fidelity
and Surety Company of the Philippine Islands to the

CRED TRANS digests GUARANTY & SURETYSHIP (Art 2047-2084) Page 3 of 6


But in this instance the guarantor's case is even stronger than A guarantor agrees that the
that of an ordinary surety. In English the term "guarantor" implies A surety promises to pay the creditor, after proceeding
an undertaking of guaranty, as distinguished from suretyship. principal's debt if the principal against the principal, may
will not pay proceed against the guarantor
Distinguishing features of contracts of guaranty vis--vis surety: if the principal is unable to pay
It is very true that notwithstanding the use of the words A surety binds himself to
- A guarantor does not contract
"guarantee" or "guaranty" circumstances may be shown perform if the principal does
that the principal will pay, but
which convert the contract into one of suretyship but not, without regard to his
simply that he is able to do so
such circumstances do not exist in the present case: on ability to do so
the contrary it appears affirmatively that the contract is A surety undertakes directly A guarantor contracts to pay if,
the guarantor's separate undertaking in which the for the payment and is so by the use of due diligence, the
principal does not join, that it rests on a separate responsible at once if the debt cannot be made out of
consideration moving from the principal and that principal debtor makes default the principal debtor
although it is written in continuation of the contract for
the construction of the building, it is a collateral under FACTS
taking separate and distinct from the latter. All of these
circumstances are distinguishing features of contracts of Pursuant to a promissory note, MB Lending extended
guaranty. a 30k loan to Sps. Azarraga and Estrella Palmares, payable on
or before 12 May 1990, with compounded interest at 6% per
- Now, while a surety undertakes to pay if the annum to be computed every 30 days from the date thereof.
principal does not pay, the guarantor only binds himself
to pay if the principal cannot pay. The one is the insurer I, Mrs. Estrella Palmares, as the Co-maker of
of the debt, the other an insurer of the solvency of the the above-quoted loan, have fully understood
debtor. This latter liability is what the Fidelity and Surety the contents of this Promissory Note for Short-
Company assumed in the present case. Term Loan:

That as Co-maker, I am fully aware


FSC, being a guarantor, cannot be compelled to pay until it is that I shall be jointly and severally or solidarily
shown that Machetti is unable to pay liable with the above principal maker of this
- The Fidelity and Surety Company having bound itself to note;
pay only in the event its principal, Machetti, cannot pay That in fact, I hereby agree that M.B.
it follows that it cannot be compelled to pay until it is LENDING CORPORATION may demand
shown that Machetti is unable to pay. Such inability may payment of the above loan from me in case
be proven by the return of a writ of execution the principal maker, Mrs. Merlyn Azarraga
unsatisfied or by other means, but is not sufficiently defaults in the payment of the note subject to
established by the mere fact that he has been declared the same conditions above-contained.
insolvent in insolvency proceedings under our statutes,
in which the extent of the insolvent's inability to pay is Palmares and Sps. Azarraga were only able to pay 16.3k. MB
not determined until the final liquidation of his estate. Lending filed a complaint against Palmares as the lone party-
defendant, allegedly by reason of Sps. Azarragas insolvency.
Palmares main contention was that she is to be held liable
As will be seen, the original action in only upon default of the principal debtor Sps. Azarraga. She
which Machetti was the plaintiff and avers that immediately after the loan matured, she offered to
the Hospicio de San Jose defendant, has been converted into settle the obligation, but MB Lending refused, and instead
an action in which the Hospicio de San Jose is plaintiff and informed her that they would try to collect from Sps. Azarraga. In
the Fidelity and Surety Company, the original plaintiff's addition, partial payment has been made.
guarantor, is the defendant, Machetti having been practically
eliminated from the case. RTC dismissed MB Lendings complaint without
prejudice to the filing of a separate action for a sum of money
against Sps. Azarraga. The offer Palmares made to pay the
obligation is considered a valid tender of payment sufficient to
E. PALMARES v. CA and MB LENDING discharge her secondary liability on the instrument. As co-
1998 / Regalado / Surety > Distinguished from guaranty maker, Palmares is only secondarily liable on the instrument.

SURETY / SURETYSHIP GUARANTOR / GUARANTY CA reversed RTC and declared Palmares liable to pay
GUARANTOR: Insurer of the MB Lending the outstanding balance of 13.7k at 6% per month
SURETY: Insurer of the debt
solvency of the debtor computed from the date the loan was contracted until fully paid,
A suretyship is an undertaking A guaranty is an undertaking penalty charges, attorneys fees, and costs. Palmares is a surety
that the debt shall be paid that the debtor shall pay since she bound herself to be jointly and severally liable with Sps.
CRED TRANS digests GUARANTY & SURETYSHIP (Art 2047-2084) Page 4 of 6
Azarraga when she signed as co-maker. Therefore, she is judicial or extrajudicial demand. This argument fails. Paragraph
primarily liable and may be sued for the entire obligation. (G) of the note states that "should I fail to pay in accordance with
the above schedule of payment, I hereby waive my right to
ISSUE & HOLDING notice and demand." Hence, demand by the creditor is no longer
WON Palmares is a guarantor or a surety. SURETY; primarily necessary in order that delay may exist since the contract itself
liable. already expressly so declares. As a surety, petitioner is equally
bound by such waiver.
RATIO
Palmares expressly bound herself to be jointly and severally or Even if it were otherwise, demand on the sureties is not
solidarily liable with Sps. Azarraga; therefore, her liability is that necessary before bringing suit against them, since the
of a surety. The rule that ignorance of the contents of an commencement of the suit is a sufficient demand. A surety is
instrument does not ordinarily affect the liability of one who not even entitled, as a matter of right, to be given notice of
signs it also applies to contracts of suretyship. The mistake of a the principal's default. Inasmuch as the creditor owes no duty
surety as to the legal effect of her obligation is ordinarily no of active diligence to take care of the interest of the surety, his
reason for relieving her of liability. mere failure to voluntarily give information to the surety of the
default of the principal cannot have the effect of discharging the
The undertaking to pay upon default of the surety. The surety is bound to take notice of the principal's
principal debtor does not automatically remove it from the default and to perform the obligation.
ambit of a contract of suretyship. The second and third
paragraphs of the promissory note do not contain any other The alleged failure of MB Lending to prove the fact of
condition for the enforcement of MB Lendings right against demand on Sps. Azarraga is immaterial. In the absence of a
Palmares. A contract of suretyship is that wherein one lends his statutory or contractual requirement, it is not necessary that
credit by joining in the principal debtor's obligation, so as to performance of his obligation be first demanded of the principal,
render himself directly and primarily responsible with him, and especially where demand would have been useless; nor is it a
without reference to the solvency of the principal. requisite that the principal be called on to account. A suretyship
is a direct contract to pay the debt of another. As an original
Several attendant factors support the finding that Palmares promisor and debtor from the beginning, he is held
is a surety. ordinarily to know every default of his principal.
When she was informed about the spouses failure to
pay, she immediately offered to settle the account with Re: Palmares argument that the filing of the complaint
MB Lending. solely against her was improper UNMERITORIOUS
She presented the receipts of the payments already Under NCC 1216, the creditor may proceed against any one
made, which were all issued in her name and of the of the solidary debtors or some or all of them
Azarraga spouses. This can only be construed to mean simultaneously. In accordance with the rule that, in the absence
that the payments made by the principal debtors were of statute or agreement otherwise, a surety is primarily liable,
considered by MB Lending as creditable directly upon and with the rule that his proper remedy is to pay the debt and
the account and inuring to the benefit of Palmares. pursue the principal for reimbursement, the surety cannot at law,
unless permitted by statute and in the absence of any agreement
A surety is bound equally and absolutely with the principal, limiting the application of the security, require the creditor or
and as such is deemed an original promisor and debtor from the obligee, before proceeding against the surety, to resort to and
beginning. In suretyship, there is but one contract, and the exhaust his remedies against the principal, particularly where
surety is bound by the same agreement which binds the both principal and surety are equally bound.
principal. The contract of a surety starts with the agreement,
which is precisely the situation obtaining in this case. MB Lendings mere failure to immediately sue Palmares on
her obligation does not release her from liability.
A surety is usually bound with his principal by the same Where a creditor refrains from proceeding against the
instrument, executed at the same time and upon the same principal, the surety is not exonerated. Mere want of
consideration; he is an original debtor, and his liability is diligence or forbearance does not affect the creditor's rights
immediate and direct. Where a written agreement on the same vis-a-vis the surety, unless the surety requires him by
sheet of paper with and immediately following the principal appropriate notice to sue on the obligation. In the absence of
contract between the buyer and seller is executed simultaneously proof of resultant injury, a surety is not discharged by the
therewith, providing that the signers of the agreement agreed to creditor's mere statement that the creditor will not look to the
the terms of the principal contract, the signers were "sureties" surety, or that he need not trouble himself. The consequences of
jointly liable with the buyer. the delay, such as the subsequent insolvency of the principal, or
the fact that the remedies against the principal may be lost by
Re: Palmares argument that the complaint was prematurely lapse of time, are immaterial. The raison d'tre for the rule is
filed for lack of demand UNMERITORIOUS that there is nothing to prevent the creditor from
Palmares was saying that Sps. Azarraga cannot as yet be proceeding against the principal at any time.
considered in default, as MB Lending has not yet made either a
CRED TRANS digests GUARANTY & SURETYSHIP (Art 2047-2084) Page 5 of 6
Leniency shown to a debtor in default, by delay permitted by
the creditor without change in the time when the debt might
be demanded, does not constitute an extension of the time
of payment, which would release the surety.
In order to constitute an extension discharging the surety:
It should appear that the extension was for a definite
period, pursuant to an enforceable agreement between
the principal and the creditor
It was made without the consent of the surety or with a
reservation of rights with respect to him
The contract must be one which precludes the creditor
from enforcing the principal contract within the period
during which he could otherwise have enforced it, and
which precludes the surety from paying the debt

None of these elements are present here. The mere fact that MB
Lending gave Sps. Azarraga an extended period of time within
which to comply with their obligation did not effectively absolve
Palmares from the consequences of her undertaking. Besides, the
burden is on the surety Palmares to show that she has been
discharged by some act of the creditor MB Lending.

SC DECISION: Constrained to dismiss the petition for lack of


merit, but to except therefrom the issue anent the propriety
of the monetary award adjudged to herein respondent
corporation.

CRED TRANS digests GUARANTY & SURETYSHIP (Art 2047-2084) Page 6 of 6

Vous aimerez peut-être aussi