Quick summary: Being a fiador (guarantor) means undertaking to answer for another person’s obligations (Código Civil, Article 2100). A fianza (civil guarantee) must be in writing to be valid (Article 2101), and the guarantor cannot undertake more than the principal debtor (Article 2102). As a general rule, the creditor must first pursue the debtor’s assets: the beneficio de excusión (right to prior recourse against the debtor’s assets), Article 2106. Exceptions apply if the guarantor expressly waives it, undertakes liability solidariamente (jointly and severally), or the debtor enters bankruptcy or assigns assets (Article 2107). An indefinite guarantee ends one year after the contract date unless expressly agreed otherwise (Article 2118). An extension granted to the debtor without the guarantor’s express consent extinguishes the guarantor’s obligation (Article 2117).
Download the Fianza Contract (Word)
A private agreement between creditor, debtor and guarantor, with spaces for the guaranteed obligation (rental, loan or another obligation), the maximum guarantee amount, an expiry date, an express choice about excusión (kept / waived / solidary guarantor), extension provisions (Articles 2111 and 2117), any remuneration for the guarantor (Article 2100), and notarization of signatures.
For a rental, see the lease agreement template and the guide to renting an apartment as a foreigner.
For foreign signers: If the agreement is executed as an instrumento público (public instrument), the Código de Notariado provides for identification, when the notary does not know the parties, by cédula de vecindad or passport, by two witnesses known to the notary, or by both means if the notary considers it appropriate. A party who does not know Spanish appoints an interpreter, preferably a traductor jurado (sworn translator); if the interpreter cannot sign, a witness signs for them. These provisions concern public instruments, rather than a passport requirement for every private contract.
What the Fiador Risks (and What They Do Not)
| Topic | Rule | Article |
|---|---|---|
| Form | The fianza must be in writing to be valid | 2101 |
| Scope | Only what was expressly undertaken; the guarantor may undertake less, but not more, than the principal debtor, in amount or onerousness of conditions (any excess is treated as reduced) | 2102 |
| Unlimited guarantee | Principal obligation + interest + damages for late payment + court costs; other damages and court costs only when incurred after payment was demanded | 2103 |
| Limitation through security | Liability may be limited by constituting a prenda (pledge) or hipoteca (mortgage) | 2103 |
| Invalid obligation | A guarantee of an invalid obligation is void, except where invalidity arises from the debtor’s personal incapacity and the guarantor knew of it when undertaking the guarantee | 2104 |
| Remuneration | The guarantor may agree with the debtor on payment for the service | 2100 |
| Heirs | The guarantor’s rights and obligations pass to their heirs in proportion to their respective shares | 2120 |
Beneficio de Excusión: the Most Important Checkbox
Under Article 2106, a guarantor cannot be compelled to pay the creditor without prior recourse against the debtor’s assets. In other words, the creditor must first pursue those assets.
This benefit does not apply (Article 2107):
- When the guarantor expressly waived it.
- When the guarantor undertook solidary liability with the debtor.
- In the debtor’s quiebra (bankruptcy) or cesión de bienes (assignment of assets).
Even where the benefit applies, the guarantor must invoke it when the creditor demands payment and identify realizable debtor assets sufficient to cover the obligation (Article 2108). The template provides checkboxes for the three contractual choices so that the selected arrangement is clear.
Term and Extensions: When the Guarantor Is Released
- No expiry date: If the fianza was given for an indefinite period and there is no express agreement otherwise, the guarantor’s obligation ends one year after the contract date (Article 2118).
- Extension without consent: An extension granted to the debtor without the guarantor’s express consent extinguishes the guarantor’s obligation (Article 2117).
- Automatic-extension clause: A clause allowing the principal term to be extended by agreement of both parties without a new deed or document does not extend the fianza unless the guarantor expressly records acceptance of the clause and the extension’s duration. That consent may be given when the guarantee is established (Article 2111).
If the Guarantor Pays, or Sees Trouble Ahead
- Reimbursement and subrogation: A guarantor who pays all or part of the obligation is entitled to reimbursement and takes the creditor’s place against the debtor. Any reduction or benefit obtained from the creditor benefits the debtor; the guarantor cannot recover more than they actually paid (Article 2114).
- Several guarantors: The guarantor who pays may recover from the co-guarantors, deducting their own proportional share (Article 2115).
- Security for the guarantor: The guarantor may ask the debtor to provide security against the consequences of the guarantee if the debtor is about to leave the country; their assets have diminished to the point of risking insolvency; there is justified fear they will conceal or dissipate assets; the creditor has sued the guarantor for payment; or the agreed deadline for the debtor to obtain the guarantor’s release has expired (Article 2105).
- Release through payment: The guarantor may ask to be released by making a judicial deposit of the amount owed and interest through the end of the term (Article 2110).
Related Procedures
- Lease agreement: Word template — for a rental guarantee.
- Contrato de mutuo (loan agreement), in Spanish — a private loan agreement.
- Debt acknowledgment, in Spanish — where the debt already exists.
- Payment demand letter, in Spanish — a payment demand and late payment.
- Payment receipt and debt discharge, in Spanish — documenting payment and discharge.
General information, not legal advice. Articles refer to the Código Civil Comentado published by CENADOJ (Organismo Judicial). Before signing as a solidary guarantor or guaranteeing a large amount, consult a lawyer.