However, most modern guarantees are unconditional and weigh entirely on the guarantor without the secured party having to do more than ask the guarantor to pay if a debt is not paid. Verbal guarantees are almost never enforceable in California, although many creditors have tried to enforce them by claiming that they only grant loans on the basis of various verbal assurances from the debtor`s owners. While the law stipulates that a guarantee must be written, inventive creditors have attempted to impose liability on verbal “guarantors” by invoking constructive fraud, negligent misrepresentation and piercing theories of the corporate veil. These efforts are rarely successful, and both the Statute and common sense indicate that something as serious as a guarantee MUST be written, carefully describing the principle, the guarantor and the secured party and whether the guarantee concerns all debts and is in force for a certain period of time. The principal right of the guarantor against the creditor entitles him, after payment of the secured debt, to all the securities held by the creditor against the principal debtor. If the creditor has lost or indebted these securities by default or has otherwise made them unavailable, the guarantee shall be paid to the pro tanto. These allegations are considered seriatim. An unconditional warranty does not require the secured party to perform certain functions before relying on the warranty. For example, a guarantee may be subject to the exhaustion first of all efforts to go against the principle; it may be subordinated to the condition that the debt is intended only for a certain type of operation; it may be subject to the secured party adequately informing the guarantor in writing of the commitments entered into.
On April 18, 1947, the defendant enforced a security addressed to Crompton-Richmond Company, Inc. (hereinafter referred to as the Company). That agreement, reduced to its substantive terms, provides as follows: the trial court concluded that, although the limitation period against Midwest had expired, the defendant`s obligation was “a separate and distinct contract” in which the limitation period had not expired and the defendant surety was not exempted by the discharge of the principal debtor, since she had expressly accepted such a release. The judgment in favour of the plaintiff in its entirety was rendered against the defendant and the defendant is appealing against that judgment. The obligations of a guarantor are legally dependent on those of the principal debtor and, where the obligations of the principal debtor expire, the same applies to those of the guarantor[7], except in certain cases where the principal debtor is automatically discharged. [8] The co-extended and secondary nature of the guarantor`s liability, as well as the fact that the guarantee is a contract to respond to defects, debts or miscarriages; decisively distinguishes the guarantee from compensation. [9] Yes, for example. B, a person mistakenly assumes that someone is responsible for him and that a guarantee is given on this erroneous basis, the guarantee is void under contract law because his basis (that another was responsible) failed.
[10] As defined in the terms of the loan agreement, a guarantor may be limited or unlimited in terms of timing and the amount of the financial contribution. A typical example: a limited guarantor can only be asked to guarantee a loan until a certain time, after which the borrower alone assumes responsibility for the remaining payments and suffers only the consequences of a default. A limited guarantor may also only be responsible for covering a certain percentage of the loan, which is called a penalty amount. This differs from permanent guarantors, who are responsible for the entire loan amount for the duration of the contract. However, there remains the danger that the obligation of the principle towards the secured party may be changed between them without notice or warning to the guarantor, and many guarantees give the guaranteed party the right to do so. The negligent guarantor can therefore guarantee a much more complete and burdensome obligation than before. The prudent guarantor insists in the guarantee that the obligation under its conditions cannot be modified without the prior notice and consent of the guarantor. Guarantors are not only used by borrowers with poor credit history. To put it bluntly, landlords often require new tenants to provide rental guarantors. This often happens with students whose parents assume the role of guarantor in case the tenant cannot pay the rent or breaks the lease prematurely.
The letter should indicate whether the means of the principle must first be exhausted before the creditor can request recovery from the guarantor […].