(Question XV, Civil Law, 2017 Bar Exam)
Kevin signed a loan agreement with ABC Bank. To secure payment, Kevin requested his girlfriend Rosella to execute a document entitled “Continuing Guaranty Agreement” whereby she expressly agreed to be solidarily liable for the obligation of Kevin.
Can ABC Bank proceed directly against Rosella upon Kevin’s default even without proceeding against Kevin first? Explain your answer. (3%)
Under jurisprudence, a contract of surety creates a solidary obligation on the part of the surety to guarantee the performance of the debtor. The surety is directly liable for the non-performance of the debtor. Rule
In the case at bar, Rosella entered into a contract of surety despite the document being referred to as a “Continuing Guaranty Agreement”. This is due to the fact that he as surety expressly agreed to be solidarily liable for the obligation of Kevin. Apply
Thus, ABC Bank can proceed directly against Rosella upon Kevin’s default even without proceeding against Kevin first. Conclusion
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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