The Plea of Discussion (Défense de Discussion) and its Role in Protecting the Personal Guarantor under Libyan Civil Law
Abstract
The contractual guarantee, as one of the most prominent personal guarantees, aims to encourage credit and achieve solidarity between individuals. However, the guarantee must not perform this role by exploiting the guarantor and burdening him with the debt before knowing the extent of the debtor's ability to repay it. Therefore, most modern laws, including the Libyan Civil Code, have been keen to recognize the guarantor's right to demand that the creditor execute on the debtor's funds first before recourse to him, by means of a defense of abstraction, which is completely consistent with the nature of the guarantee and the nature of the guarantor's obligation, as he is nothing more than a reserve debtor. However, this defense, despite its importance, has not received sufficient legislative regulation in Libya, as it has been plagued by shortcomings in many of its aspects, which has opened the door for creditors to exploit guarantors by recourse to them before the debtor, with what this constitutes in terms of weakening this guarantee by individuals' reluctance to guarantee the debts of others, which has resulted in many individuals being deprived of services or borrowing money that require the provision of a personal guarantor. This requires finding solutions that guarantee the guarantor's ability to use this defense to protect his rights, on the one hand, and to prevent the contractual guarantee from being emptied as a personal reserve guarantee and a subsidiary of its essence and content.
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