Legal Frameworks Governing the Guarantor’s Right to Rise the Defense of Debtor Recourse Exhaustion: A Comparative Study between Jordanian and Kuwaiti Civil Laws
Dr. Alaa Wasfi Al Mistarehi
Assistant Professor of Civil Law – Faculty of Law – Yarmouk University – Jordan
This research determines the position of both Jordanian and Kuwaiti legislators regarding the guarantor’s right to rise the “debtor’s recourse exhaustion defense”. One of the most important findings of this research is that the Jordanian legislator has confused the legal status of the guarantor with the legal status of the joint debtor. The Jordanian law does not permit the guarantor to rise the debtor’s recourse exhaustion defense. Considering that the creditor has the right to claim the guarantor and execute before claiming the debtor and execute except for one case, where the creditor’s claim to the guarantor before the implementation on the in-kind guarantees of the guaranteed debt. However, in return, the guarantor of the guarantor according to the Jordanian law was granted to rise the “debtor’s recourse exhaustion defense”.
On the other hand, the Kuwaiti lawmaker distinguished accurately between the legal status of the guarantor and the legal status of the joint debtor, where the non-solidarity guarantor was granted absolutely the right to raise the “debtor’s recourse exhaustion defense”. This includes the inadmissibility of the creditor to claim the guarantor before its implementation on in-kind guarantees for the guaranteed debt, and the inadmissibility of execution on the guarantor funds prior to implementation on the debtor’s funds, without distinguishing in this regard between the guarantor and the guarantor’s guarantor.
Keywords: Guaranteeing money, “Debtor’s recourse exhaustion defense”, the joint guarantor, in-kind guarantees for the guaranteed debt.