Credit Transactions
20. Garcia v. Lianco, 50 OG, No. 3, p.1145
RULING:
A careful examination of the provisions of Article 1834 of the Old Civil Code and Article
2062 of the New Civil Code would reveal that under both articles there is no substantial
difference regarding the procedure of including the guarantor in a suit filed against the principal
debtor. The inclusion of the guarantor in the Old Civil Code is by way of judicial notice only and
not be formal summons. Its sole purpose is to give the guarantor the chance to set up defenses as
are afforded him by law if he so desires.
It should be observed that a similar procedure is provided for in Article 2062 of the New
Civil Code with the sole difference that according to the Old Civil Code the asking for the
notification of the guarantor is optional on the part of the creditor while according to the New
Civil Code it is mandatory. In both provisions the purpose of the notification is to give the
guarantor the opportunity to allege and substantiate whatever defenses he may have against the
principal obligor. Under both, the guarantor is not duty bound to appear in the case, it being
optional to him to do so, and his non-appearance shall not constitute default with its
consequential effect for the reason that after all his benefit of excussion is reserved and pursuant
to both articles the time for him to pay the obligation has not ripened yet.
The inclusion, therefore, of defendant in this case in the sense contemplated by the
provision of Article 1834 of the Old Civil Code is not an infringement of Article 2062 of the
New Civil Code. On the contrary, his citation under the New Civil Code is obligatory and by his
inclusion in this case he was accorded an occasion to plead and support with evidence, as he did,
his defense against the juridical validity and effectivity of the principal obligation and was not
left to venture on the possible inaction, indifference or negligence of the principal debtor.