What happens if the beneficiary of a banking endorsement or another guarantee chooses to execute the same before the non-payment of the indebted one that has been declared in contest? This one is a fundamental question not only for the beneficiary of the guarantee, but also for authorising of the same – in many cases, a financial organization Neither one nor the other must not know the possible consequences of which their indebted one and guaranteed, respectively, are declared in contest of creditors. For greater expositiva clarity, throughout the present article we will denominate to the fastener or guarantor like " avalista". On the other hand, to the indebted one in contest we will call " to him; indebted avalado". And to the beneficiary of the guarantee, " the creditor with aval". 1. – The general rule of article 87,6 of Ley Concursal (LC) Establishes the mentioned disposition that " the credits in which the deserving benefit of third party guarantee will be clear by their amount without limitation some and notwithstanding the substitution of the holder of the credit in case of payment by fiador". This means that after the declaration of contest, the guarantor will remain like subject forced in front of the creditor with endorsement, benefitted by the term that remains until the demandability of its obligation. If, constant the contest, such term passes and the creditor with endorsement demands to the guarantor the fulfillment of the guarantee obligation, this one – the guarantor will become, due to the payment, in titling of the guaranteed credit against the indebted one, for whose exigency she will be able to subrogate itself in the place of the primitive creditor. Real Decree-law 2/2009, of 27 of March, is addition to mentioned article 87,6 the following mention: " Whenever one takes place the subrogation by payment, in the qualification of these credits will be chosen by which is less onerous for the contest between which they correspond to the creditor or fiador".
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