Article 1638. Debtor’s defences available to the surety

(1) As against the creditor, the surety may invoke any defense of the debtor with respect to the secured obligation, even if the defense is no longer available to the debtor due to acts or omissions of the debtor occurring after the suretyship was assumed.
(2) The surety is entitled to refuse to perform the security obligation:
a) if, under the law, the debtor has the right to revoke the contract with the creditor and the revocation period has not expired;
b) if the debtor has the right to withhold performance of the reciprocal obligation;
c) if the debtor has the right to terminate the contractual relationship between the debtor and the creditor for non-performance.
(3) The surety may not invoke the lack of full discernment or legal capacity of the debtor, whether a natural person or a legal entity, or the non-existence of the debtor as a legal entity, if these circumstances were known to the surety at the time the suretyship was assumed.
(4) As long as the debtor’s action to declare the relative nullity of the contract or other juridical act from which the secured obligation arises has not been time-barred, on any ground other than that mentioned in paragraph (3), even if the debtor has not initiated the action, the surety is entitled to refuse performance.
(5) The provisions of paragraph (4) apply accordingly if the debtor is entitled to discharge the secured obligation by set-off.