THE ONE WHO GUARANTEES PAYS. SOME PROBLEMS OF GUARANTEES FROM PARENTS TO DIVORCING CHILDREN

THE ONE WHO GUARANTEES PAYS. SOME PROBLEMS OF GUARANTEES FROM PARENTS TO DIVORCING CHILDREN

"He who endorses pays." It is a phrase learned from my family environment and that I repeat a lot at the Notary, on the occasion of signing deeds and policies, since I have come to the conclusion that short and striking phrases, in the context of the authorization of a notarial document , are much more effective than reading and technical explanation of the issues. In terms of guarantees, I usually complete the previous saying, with the phrase that my father used to tell me many times, "don't even guarantee your father."

Despite the warnings that I and many other notaries have made about the risks of signing a guarantee, the truth is that in the bubble times many of them were signed, and many of the guaranteed loans have failed, which has resulted in the consequence that the amount of the unpaid loan is claimed from the guarantors.

A very typical figure was the guarantee given by the parents to the young couple, who began their life together with the purchase of an apartment and probably a little financially drowned.

Perhaps the economic hardships were the cause of the loss of love of these young couples, because they already know that when misery enters through the door, love goes out the window, which made one or both of them disregard the apartment they had bought, and for whose payment the parents have finally had to respond.

The parents who have paid are fully aware that they would do anything for their son or daughter, but they are somewhat reluctant to provide any type of economic benefit to the ex-son-in-law or ex-daughter-in-law, and so they go to the Notary and ask him the question What motivates this entry, since having paid the loan, they want to forgive what their son or daughter would have to pay, but not their ex, and they say, can I do it?

I have to say that the first time they asked me a question, I had to immerse myself again in the Civil Code, in the old regulation of joint and several obligations and the bond regime, but I found the solution, in article 1146 CC , which tells us that "The removal or remission made by the creditor of the party that affects one of the joint debtors, does not free him from his responsibility towards the co-debtors, in the event that the debt has been fully paid by any of them."

The precept is really cumbersome to read, and to a certain extent it cannot be less when it comes to establishing very general issues by means of a rule. On the subject of guarantees, we have that as a consequence of the payment made to the creditor (bank), by the guarantors (parents) they have the right to claim what was paid to the original debtors (children).

The children are jointly and severally liable to the parents, so the latter can demand payment of the entire debt from any of them, without prejudice to the fact that the one who has paid can claim the part that corresponds to the other, normally the half.

With the norm that we have indicated, it turns out that the condonation made to the son, also takes advantage of his ex, which derives a lot of disappointment in the parents, and that they must resort to indirect means to seek the desired result.

 

 

 

 

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