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GUARANTY
(3) Unilateral
a. It gives rise only to a duty on
the part of the guarantor in
relation to the creditor and not
vice versa although after its
fulfilment, the principal debtor
becomes liable to indemnify the
guarantor but this is merely an
incident of the contract; and also
because
b. It may be entered into even
without the intervention of the
principal debtor (Art. 2050); and
(4) Personal it is a contract which
requires that the guarantor must be a
person distinct form the debtor because
a person cannot be the personal
guarantor of himself.
A person cannot be both the primary
debtor and the guarantor of his own debt
as this is inconsistent with the very
purpose of a guarantee which is for the
creditor to proceed against a third person
if the debtor defaults in his obligation.
However, in real guaranty, like pledge
and mortgage, a person may guarantee
his own obligation with this personal or
real properties.
Classification of guaranty
(1) Guaranty in the broad sense:
a. Personal this refers to
guaranty properly so-called or
guaranty in the strict sense. (Art.
2047.) Here, the guarantee is the
credit given by the person who
guarantees the fulfilment of the
principal obligation; or
b. Real Here, the guaranty is
property, movable or
immovable. If immovable, the
guaranty is in the form of real
mortgage (Art. 2124.) or
antichresis (Art. 2132.) and if
movable, in the form of pledge
(Art. 2093.) or chattel mortgage.
(Art. 2140.)
(2) As to its origin: