TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES also known

as PHILIPPINE EXPORT-IMPORT CREDIT AGENCY, Petitioner

vs.
PHILIPPINE VETERANS BANK, Respondent
G.R. No. 233850 ; 1 July 2019
Second Division
Caguioa, J.

TOPIC: Distinction between Guaranty and Suretyship; Benefit of Excussion

NATURE OF THE ACTION: Action for Specific Performance

FACTS:
On 23 November 2011, a Five-Year Floating Rate Note Facility Agreement was entered into
by respondent Philippine Veterans Bank (PVB) together with other banking institutions (Series A
Noteholders) and Philippine Phosphate Fertilizer Corporation (PhilPhos) up to the aggregate
amount of ₱5 billion. PVB committed the amount of ₱1 billion in the said agreement. On the same
date, Trade and Investment Development Corporation of the Philippines (TIDCORP), with Philpos’
conformity, executed a Guarantee Agreement to secure the payment of the Series A Notes whereby
TIDCORP bound itself to guarantee the payment of the guaranty obligation up to 90% of the
outstanding Series A Notes, including interest, on a rolling successive three-month period
commencing on the first drawdown date and ending on the maturity date of the Series A Notes.

When Typhoon Yolanda hit Centray Visayas and caused damage to Philphos’ manufacturing
facilities on 8 November 2013, Philpos’ failed to resume its operations. Upon Philpos’ filing of
petition for Voluntary Rehabilitation under the Financial Rehabilitation and Insolvency Act of
20107 (FRIA) before the Regional Trial Court of Ormoc City, Branch 12, a commencement order
including stay order was issued by the said court.

PVB filed its notice of claim on 5 November 2015 with TIDCORP, however, the latter refused
to accept PVB’s claim by invoking the stay order issued by the Rehabilitation Court. On 22
September 2016, PVB filed a complaint for specific performance before the RTC against TIDCORP
arguing that TIDCORP agreed to guarantee payment to the Series A Noteholders to the extent of
90% of the Series A Notes and interest and waived the benefit of excussion. TIDCORP argued in its
Answer with Counterclaim that said complaint cannot be tried by the court due to the
Rehabilitation Court’s Stay Order. Consequently, RTC granted PVB’s Motion for Summary
Judgement since there was no genuine issue as to any material fact presented by TIDCORP. Hence,
this Petition for Review on Certiorari was filed by TIDCORP assailing RTC’s Order.

ISSUE:
Whether or not TIDCORP can be held solidarily liable with PHILPOS under the Guarantee
Agreement by waiving the benefit of excussion.

RULING:
Yes, petitioner TIDCORP indubitably engaged to be solidarily liable with PhilPhos under the
Guarantee Agreement. The Guarantee Agreement unequivocally states that petitioner TIDCORP
waived its right of excussion under Article 2058 of the Civil Code and that, consequently, the Series
A Noteholders can claim under the Guarantee Agreement DIRECTLY against petitioner TIDCORP
without having to exhaust all the properties of PhilPhos and without need of any prior recourse
against PhilPhos:

5.1 ORDINARY GUARANTEE. TIDCORP, with the ISSUER's express

conformity, hereby waives the provision of Article 2058 of the New Civil Code
of the Philippines on excussion, as well as presentment, demand, protest or
notice of any kind with respect to this Guarantee Agreement. It is therefore
understood that the SERIES A NOTEHOLDERS can claim under this Guarantee
Agreement directly with TIDCORP without the SERIES A NOTEHOLDERS having
to exhaust all the properties of the ISSUE and without need of prior recourse
to the ISSUER.

Under a normal contract of guarantee, the guarantor binds himself to the creditor to fulfill
the obligation of the principal debtor in case the latter should fail to do so. The guarantor who pays
for a debtor, in turn, must be indemnified by the latter. However, the guarantor cannot be
compelled to pay the creditor unless the latter has exhausted all the property of the debtor
and resorted to all the legal remedies against the debtor. This is what is otherwise known as
the benefit of excussion. Conversely, if this benefit of excussion is waived, 34 the guarantor can be
directly compelled by the creditor to pay the entire debt even without the exhaustion of the
debtor's properties. In other words, a guarantor who engages to directly shoulder the debt of the
debtor, waiving the benefit of excussion and the requirement of prior presentment, demand,
protest or notice of any kind, undoubtedly makes himself/herself solidarily liable to the creditor.

As explained in Spouses Ong v. Philippine Commercial International Bank 1 (Spouses Ong), a

surety is one who directly, equally, and absolutely binds himself/herself with the principal debtor
for the payment of the debt:

x x x Thus, a creditor can go directly against the surety although the principal debtor
is solvent and is able to pay or no prior demand is made on the principal debtor. A
surety is directly, equally and absolutely hound with the principal debtor for the
payment of the debt and is deemed as an original promissor and debtor from
the beginning.36

Recognized Civil Law Commentator, former Court of Appeals Justice Eduardo P. Caguioa
also explained that one of the hallmarks of a contract of guaranty is its subsidiary character - "that
the guarantor only answers if the debtor cannot fulfill his obligation; hence the benefit of excussion
in favor of the guarantor." Hence, under the Civil Code, "by virtue of [Article 2047, which states that
a contract is called a suretyship when a person binds himself solidarily with the principal
debtor,] when the guarantor binds himself solidarily with the debtor, the contract ceases to
be a guaranty and becomes suretyship." The eminent civilist further explained that what
differentiates a surety from a guaranty is that in the former, "a surety is principally liable[,] while a
guarantor is [only] secondarily liable."

In the instant case, without any shadow of doubt, petitioner TIDCORP had expressly
renounced the benefit of excussion and in no uncertain terms made itself directly and
principally liable without any qualification to the Series A Noteholders and without the need of
any prior recourse to PhilPhos. In effect, the nature of the guarantee obligation assumed by
petitioner TIDCORP under the Guarantee Agreement was transformed into a suretyship. This is the
case because the defining characteristic that distinguishes a guarantee from a suretyship is that in
the latter, the obligor promises to pay the principal's debt if the principal will not pay, while in the
former, the obligor agrees that the creditor, after proceeding against the principal and exhausting
all of the principal's properties, may proceed against the obligor.

Hence, taking together the fact that petitioner TIDCORP expressly admitted its obligations
under the Guarantee Agreement, and that it failed to offer any substantial defense against the claim
of respondent PVB, the RTC was not in error in holding that there is no genuine issue as to a
material fact extant in the instant case. For the foregoing reasons, the Court hereby denies the
instant Petition for lack of merit.

WHEREFORE, in view of the foregoing, the instant Petition is hereby DENIED. The Order
dated August 16, 2017 rendered by the Regional Trial Court of Makati City, Branch 150 in Civil Case
No. R-MKT-16-02011-CV is AFFIRMED.

SO ORDERED.

1
489 Phil. 673 (2005).