Surety’s obligation is not original; but direct and primary to creditor

The surety’s obligation is not an original and direct one for the performance of his own act, but merely accessory or collateral to the obligation contracted by the principal. Nevertheless, although the contract of a surety is in essence secondary only to a valid principal obligation, his liability to the creditor or promise of the principal is said to be direct, primary and absolute; in other words, he is directly and equally  bound with the principal. (Garcia vs. CA, 191 SCRA 439 (1990); IFC vs. Imperial Textile Mills, Inc., G.R. No. 160324, November 15, 2005).

Under the law and jurisprudence, the creditor may sue, separately or together, the principal debtor and the surety, in view of the solidary nature of their liability. The death of the principal debtor will not work to convert, decrease or nullify the substantive right of the solidary creditor. Evidently, despite the death of the principal debtor, the creditor may still sue petitioner alone, in accordance with the solidary nature of the latter’s liability under the performance bond. (Stronghold Insurance Co., Inc. vs. Republic – Asahi Glass Corp., supra.).