The unlimited liability. The Guarantor

There is a colloquial expression, not regulated in our legal system, used by consumers to sign an actual loan or consumption, namely "endorsement to my house," "endorsement to my salary or pension," "guarantor with ground" and so on. This term that has no legal recognition is used intentionally by the bank want to get their business objectives assets (loans) and accept consumers who want to recover their credit needs. However, in our legal system, the receivable attributable to the owner, the creditor, the power to require the debtor, regardless of whether the owner, co-owner or guarantor, that successful completion of their interests. The fundamental rule of this general system of protection of the credit claim is contained in Article 1911 of the Civil Code.

Required by Article 1911 of the Civil Code that "the obligations the debtor responds with all his property, present and future." This wording reflects what is known in the world of law as unlimited liability. The unlimited liability is thus a general protection of the credit claim that only comes into play when a breach of the obligation. While this failure does not occur this responsibility takes a matter of potentiality in all payment obligations. Therefore, it can be said that unlimited liability is a result that reproduces the effect of the breach of the obligation and that falls on the debtor, regardless of whether it acts as a starter or as a guarantor of the loan.

However, the debtor, whether acting as owner or guarantor, answer, as the precept, with all its assets, present and future, does not mean or anything, this is the only consequence of failure is derived its payment obligation. This is undoubtedly the most relevant result, but not the only one. Indeed, as noted above, the creditor is assisted to claim compliance with the obligation to pay different means of protection and defense, even coercive benefit of their legitimate interests, for example, encourage the implementation of debt exercise the lien, etc ... the above provision also states that ... "says the debtor." A prima facie standard suggests that the subject immediately responsible for compliance with the duty-holder is the debtor or guarantor. And indeed, it is. The debtor, the owner or guarantor is the person against whom the creditor will enforce payment.

However, this statement requires some qualification. If you read carefully the said rule we notice that also states that the debtor is liable with all its assets, present and future. That is, the person responsible being the debtor is liable for the debt to its heritage. Or, put another way, the person responsible will always be the debtor, the owner or guarantor and the object of responsibility is always the same heritage. Therefore, based on the above reasoning and to make clear the principle that the person responsible is the debtor, the doctrine and the courts often describe this unlimited liability and personal responsibility, versus the actual responsibility (in which the onus is on property specific ownership regardless of staff, for example, with the security interests, mortgages. Therefore, it is often said that unlimited liability is in addition to personal assets.

To end this brief reflection on the article 1911del CC, we should note one final aspect of unlimited liability. Its universal character. This note of universality acts in a dual position: a) First, it serves to define all the debtor's assets, including the guarantor, which potentially can be affected to the liability incurred by the owner. b) Secondly, the note of universality means that any element of the debtor's assets can be legally seized by creditors in the requirement of this responsibility. However, both positions need some clarification.

1. .- The rule of proportionality .- That may be affecting a compulsory process all the debtor's assets is not necessarily an obstacle that may be made on all goods. Procedural law provides for the existence of a rule of proportionality between the amount or adequacy of the responsibility and property of the debtor. The former Civil Procedure Act of 1881 established in Art. 1442 will be the subject of a "sufficient assets to cover the amount." The current procedural law establishes in Article 584 that: "It is not expected to seize assets whose value exceeds the amount for which execution has been shipped, unless executed in the equity of valuables such exist only over those concepts and the condition demonstrate the need for such property for purposes of execution. "

2. .- The benefits of order and exclusion .- As stated above the note of universality implies the possibility of any property belonging to the debtor's assets and even the guarantor, may be subject to seizure. However, it can not be left to the creditors the choice of the property subject to the lock, otherwise the risk is that their implementation could be more damaging to the debtor in comparison with other property belonging to the debtor's assets . Therefore, in our so-called procedural law works for the benefit of the exclusion order and real. According to these principles, the law classifies any assets comprising members of the debtor's assets into different categories according to their performance easier, that is, its convertibility into cash through their sale and less important for the owner, providing that is first made the catch on those carrying goods easier and less importance to the debtor, being expendable, like money, treasury bills, securities quoted ... as stated the past LEC Article 1447 of the 1881 and the current Article 592 of that LEC 2000. So the above provision provides: "Order in foreclosures.

Attachment of companies. "1. If the creditor and debtor have not agreed otherwise, within or outside the execution, the court seize the assets of the debtor sought to take into account the greater ease of disposal and less onerous for the execution thereof 2.. If the circumstances of the performance becomes impossible or very difficult to apply the criteria in the previous section, the property was seized by the following order: 1. No money or checking accounts of any kind. 2. No Credit and duties on the spot or short-term, bonds, securities or other financial instruments admitted to trading on official secondary market values. 3. º Jewellery and art objects. 4. º Revenue money, whatever their origin and the reason for their payment. 5. No Interest, rents and fruits of every kind. 6. No movable or livestock, stocks, bonds or securities are not admitted to official listing and shares. 7. º Real Estate. 8. º Wages, salaries, pensions and income from commercial activities and independent professionals. 9. No credits, rights and values ​​achievable in the medium and long term.

3. May also order the seizure of undertakings where, taking into account all the circumstances, be preferable to the arrest of its various assets.

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