Facts
A construction company sued a surety entity the payment acknowledgement of an obligation assumed in a construction contract, as well as the cancellation of the bond policies guaranteeing such obligation.[1]
The above based on the fact that its obligation to pay the clients was already guaranteed by virtue of a court recognition of its claim (judgment on recognition, graduation and priority of claims).[2]
The construction entity argued that in accordance with the commercial bankruptcy law, the payment of the clients’ credit was assured; since creditors who have not been recognized by the aforementioned judgment cannot collect their credits outside the commercial bankruptcy proceedings as they are not regarded as creditors. Therefore, the construction entity argued that if the surety bond policies were to be paid, a double payment of the same obligation would be made.
Court’s decision
The third collegiate court in civil matters of the first circuit ruled that although the construction entity (main debtor) is subject to a commercial bankruptcy proceeding, this is not an obstacle for the clients to demand payment from the surety entity.
Rationale
Although the commercial bankruptcy law, aims to avoid that as from the issuance of the judgment on recognition, graduation and priority of claims, a debtor’s patrimony subject to a bankruptcy proceeding may be lost; the court determined that when it comes to surety bond contracts, it is not necessary to wait until knowing the outcome of a commercial bankruptcy proceeding for the clients to collect directly from the surety bond entity the clients’ credit.
The foregoing, since the trust obligation corresponds exclusively to the surety entities, which do not have the right of excusion.[3]
[1] https://sjf2.scjn.gob.mx/detalle/tesis/2026060
[2] In accordance with articles 128, 130 and 132 of the Commercial bankruptcy Law, the judgment on recognition, graduation and priority of claims is understood as follows: judgment issued by the Judge taking into consideration the final list presented by the conciliator, which determines the recognition of claims, conditions, terms and other characteristics of the same (including full name and address of the creditor, amount, the type of document that evidences the credit), as well as the degree and priority that in accordance with the provisions of the Law, it deems correspond to the credits. Definition taken from Dictionary of Mexican Legal Terminology, Javier F. Becerra, Second Edition Revised and Expanded, page 269.
[3] According to Miguel Ángel Zamora y Valencia, Civil Contracts, editorial Porrúa, page 298, the Right of Excusion is that the guarantor cannot be forced to liquidate the creditor without first having gone against all the assets of the principal debtor or having demonstrated that he is insolvent.
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