They come at you as surety: the debtor’s property goes first

They are Articles 1483 and 1484 of the Civil Code of 2020: the creditor’s duty to pursue the debtor’s property first before collecting from the surety, and the five cases where that protection does not apply.

Sureties from whom a creditor is claiming payment, under a suretyship contract governed by the Puerto Rico Civil Code. This is not criminal bail.

• The creditor may only proceed against the surety after making excussion on the principal debtor’s property.Verified against the official source
• Where the excussion does not cover total payment, the creditor may claim the unfavourable balance from the surety.Verified against the official source
• The surety of a solidary co-debtor may demand the excussion of the other co-debtors’ property.Verified against the official source
• The benefit does not exist where it was expressly waived, where the surety bound itself solidarily, where the debtor is insolvent or bankrupt with the debt due, where the debtor cannot be sued or has no property in Puerto Rico, or where the suretyship is judicial.Verified against the official source

• The suretyship document: the first two subsections of Article 1484 remove the benefit by agreement, so that is where you see whether you keep it.
• The record of the excussion made on the debtor’s property and its result, to measure the unfavourable balance.

1. 1

   Step 1: The rule: the debtor first

   Article 1483: the creditor may only proceed against the surety after making excussion on the principal debtor’s property. "Only" and "after" do the work: there is an order, and the surety comes second.

2. 2

   Step 2: And what if the property falls short

   The same article: where the excussion of property does not cover the total payment of the debt, the creditor may claim the unfavourable balance from the surety. The surety answers for the gap left, not for the whole debt from the outset.

3. 3

   Step 3: If you guaranteed a solidary co-debtor

   Second paragraph of 1483: the surety of a solidary co-debtor may demand the excussion of the other co-debtors’ property. The protection extends to all their estates, not only to that of the one you guaranteed.

4. 4

   Step 4: Before relying on this, read your contract

   Article 1484(a) and (b): the surety does not have the benefit where it has been so expressly agreed, or where it bound itself solidarily with the principal debtor. The two most frequent cases are in the paper you signed, not in the debtor’s situation.

5. 5

   Step 5: If the debtor is insolvent or bankrupt

   Subsection (c): where the debt is due and the debtor is insolvent or has been declared bankrupt. Two conditions together: a due debt, and that situation of the debtor. The Code does not define insolvency here and does not describe the bankruptcy declaration; we did not read that subject for this guide.

6. 6

   Step 6: If they cannot be sued or have no property here

   Subsection (d): where the debtor cannot be sued or has no property in Puerto Rico. The second half is territorial and is written that way in the text.

7. 7

   Step 7: And if the suretyship is judicial

   Subsection (e): where the suretyship is judicial. Nowhere in this chapter does the Code define what a judicial suretyship is or which rules govern it. We read no procedural rule on that, so this guide neither describes the figure nor names the norm governing it.

8. 8

   Step 8: How excussion is made: the Code does not explain

   Both articles use the word "excussion" without describing the procedure: they do not say before whom it is made, in what order the property is pursued, within what time, or whether the surety must point out the debtor’s property and when. This guide points at that gap and does not fill it.

9. 9

   Step 9: A related point from the chapter’s end

   The extinction section of the same chapter deals with the creditor’s fault or negligence in the excussion of property pointed out by the surety. That section is not in this guide, but it is worth knowing the Code links the two.

Excussion and the claim against the surety are litigated before the Court of First Instance; the Code names no agency for this chapter. Article 1484(e) mentions judicial suretyship without defining it, and this guide does not describe that procedure.

• Relying on the benefit of excussion without checking whether you expressly waived it in the document.
• Signing as a solidary surety believing you keep the protection: subsection (b) removes it.
• Paying the whole on first demand without requiring the debtor’s property to be pursued first.
• Forgetting that, once excussion is made, the surety answers for the unfavourable balance, not necessarily the whole.
• Not demanding excussion of the other co-debtors’ property where you guaranteed a solidary co-debtor.
• Assuming the debtor’s insolvency alone must be proved: subsection (c) also requires the debt to be due.
• Looking in this chapter for what a judicial suretyship is: the Code names it and does not define it.
• Expecting these articles to explain how excussion is made: they describe no procedure.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov