Joint and several guarantors cannot use the defense of demand or the defense of search
There are three things that are granted to guarantors but not to joint and several guarantors:
the "right of defense of demand," the "right of defense of search," and the "benefit of division."
The right of defense of demand is the right of a guarantor to demand that the creditor first seek performance from the principal debtor when the guarantor is requested to perform the obligation (Article 452 of the Civil Code).
In the case of a joint and several guarantor, this right of defense of demand does not exist (Article 454 of the Civil Code), so there is a possibility that a request for performance may be made to the joint and several guarantor suddenly.
The right of defense of search is the right of a guarantor who has been requested by a creditor to perform an obligation to refuse performance of the guarantee obligation if the debtor owns assets (such as deposits) that can be used for repayment (Article 453 of the Civil Code). However, in order to exercise the right of defense of search (Article 453 of the Civil Code), it is necessary to prove that the debtor owns assets that can be used for repayment and that execution of repayment is easy.
In the case of a joint and several guarantor, this right of defense of search does not exist (Article 454 of the Civil Code), so there is a possibility that a request for performance may be made to the joint and several guarantor suddenly.
The benefit of division is the benefit where, if there are multiple guarantors, each guarantor is not liable for the full amount of the debt, but only for the amount divided (pro-rated) by the number of guarantors (Article 427 of the Civil Code).
For example, if there are three guarantors for a debt of 30 million yen, one guarantor only needs to pay 10 million yen and does not need to pay the remaining 20 million yen.
However, in the case of joint and several guarantors, the benefit of division is not recognized. For this reason, even if there are three joint and several guarantors, each of them will be liable for the full repayment of the debt.
・Civil Code Article 427: Divisible Claims and Divisible Obligations
(Divisible Claims and Divisible Obligations)
Article 427: If there are several creditors or debtors, and there is no expression of intention to the contrary, each creditor or each debtor shall have rights or bear obligations in equal proportions.
・Civil Code Article 452: Defense of Demand
(Defense of Demand)
Article 452: When a creditor requests a guarantor to perform an obligation, the guarantor may request that the creditor first demand performance from the principal debtor. However, this shall not apply when the principal debtor has received an order for the commencement of bankruptcy proceedings or their whereabouts are unknown.
・Civil Code Article 453: Defense of Search
(Defense of Search)
Article 453: Even after a creditor has demanded performance from the principal debtor in accordance with the provisions of the preceding Article, if the guarantor proves that the principal debtor has the financial resources to make repayment and that execution is easy, the creditor must first execute against the property of the principal debtor.
・Civil Code Article 454: Special Provisions for Joint and Several Guarantees
(Special Provisions for Joint and Several Guarantees)
Article 454: If a guarantor has assumed an obligation jointly and severally with the principal debtor, they shall not have the rights set forth in the preceding two Articles.
・Civil Code Article 456: Where There Are Several Guarantors
(Where There Are Several Guarantors)
Article 456: Where there are several guarantors, the provisions of Article 427 shall apply even if those guarantors have assumed the obligation by separate acts.
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