Chapter Fifth: Surety's Right of Recourse Against the Debtor

Article 1077

Article 1077 - The guarantor may oppose to the creditor all exceptions both personal and real, which belong to the principal debtor, including those based on the personal incapacity of the latter. He has the right to avail himself of them, even if the principal debtor opposes or renounces them. He may even oppose exceptions which are exclusively personal to the latter, such as the remission of debt made to the person of the debtor.

Article 1078

Art. 1078 - The surety may take legal action against the principal debtor in order to be discharged from their obligation: 1) when they are sued for payment, and even before any lawsuit, as soon as the debtor is in default of performing the obligation; 2) when the debtor has undertaken to provide them with a discharge from the creditor within a specified timeframe, if this term has expired; in the event that the debtor is unable to provide this discharge, they must pay the debt or provide the surety with sufficient collateral or security. The surety who finds themselves in one of the cases provided for in Article 1073 may not invoke the benefit of the preceding provisions.

Article 1079

Art. 1079 - The surety may take action against the creditor in order to be discharged from the debt, if the creditor delays in demanding the performance of the obligation once it has become due.

Article 1080

Article 1080 - The guarantor who has validly extinguished the principal obligation has his recourse for all that he has paid against the debtor, even if the guarantee was given without the knowledge of the latter. He also has recourse for the costs and damages which were a necessary consequence of the guarantee. Any act of the guarantor, other than the payment properly speaking, which extinguishes the principal obligation and releases the debtor, is equivalent to payment, and gives rise to the recourse of the guarantor for the principal of the debt and the costs relating thereto.

Article 1081

Art. 1081 - The surety who has paid shall have no recourse against the principal debtor unless it can produce the creditor's receipt or another document evidencing the extinction of the debt. The surety who has paid before the due date shall have no recourse against the debtor until the maturity of the principal obligation.

Article 1082

Art. 1082 - If there are several joint and several sureties, the one who has paid the whole at maturity also has recourse, against the other sureties, each for their share and portion, as well as for the share of the insolvent joint and several debtors.

Article 1083

If the guarantor and the creditor settle, the guarantor shall have no right of recourse against the debtor and the other guarantors except for what he has actually paid or for an amount equivalent to its value if it is a specified sum.

Article 1084

Article 1084 - The guarantor who has validly settled the debt is subrogated to the rights and privileges of the creditor against the principal debtor, to the extent of all that he has paid, and against the other guarantors, to the extent of their shares and portions. This subrogation, however, does not entail modification of the particular conventions concluded between the principal debtor and the guarantor.

Article 1085

Art. 1085 - The surety has no recourse against the debtor: 1) when the surety has discharged a debt that concerned them personally, although it appeared to be in the name of another; 2) when the suretyship was given despite the debtor's prohibition. 3) when it appears from the surety's express declaration or from the circumstances that the suretyship was given in a spirit of liberality and without consideration of recourse against the principal obligor.

Article 1086

Article 1086 - The guarantor has no recourse against the principal debtor when he has paid or has allowed himself to be condemned in final judgment without warning the debtor, if the debtor proves that he has already paid the debt, or that he has means of proving its nullity or extinction. This provision is not, however, applicable when it was not possible for the guarantor to warn the debtor, in the case for example where the latter was absent.