Art. 5151.Discussion Defined

"Discussion" is one of those civil-law words that means something entirely different from its everyday English sense. It has nothing to do with conversation. In Louisiana practice, discussion is a defensive right: the right of a secondary obligor, most often a surety, to insist that the creditor first exhaust its remedies against the primary obligor's own property before coming after the secondary obligor's property at all. A reader who carries the ordinary meaning of the word into this Chapter will be lost within a sentence, so it is worth pausing on the definition before anything else.

Article 5151 states the concept at its broadest. A secondary obligor stands behind a primary obligor on the same debt, promising to pay only if the primary obligor does not. Discussion gives that secondary obligor leverage: rather than letting the creditor pick whichever party looks easier to collect from, discussion requires the creditor to go after the primary obligor's property first. Only if that property proves insufficient does the creditor get to reach the secondary obligor.

The article also extends the idea beyond ordinary suretyship. Where the obligation rests on a legal or judicial mortgage, discussion can require the creditor to pursue other property affected by that mortgage before turning to the secondary obligor's property. This broader phrasing is what lets discussion apply not only to a surety under Article 5152, but also to a transferee in a revocatory action and to a third possessor of mortgaged property, both covered in the articles that follow.

Discussion is not automatic. As the following articles make clear, it has to be pleaded, and different classes of obligors plead it in different ways and at different points in a proceeding. Article 5151 supplies the vocabulary; the articles after it supply the mechanics.