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Mapa mental

Guarantee

Rohit Beerapalli Law of Contracts B.A. LL.B. Student (2nd Year) Inglês

Mind map on guarantee contract law: economic functions, promise to answer for another's debt and essential features

Mind map: Guarantee contract law

Conteúdo do mapa

Guarantee

  1. Economic Functions

    • A promise to answer for the debt or default of another.
      • A second pocket to pay, should the first be empty.
    • Birkmyr v. Darnell
      • Two enter a shop, one to buy and the other to promise the keeper to pay in case of default.
        • This type of collateral undertaking to be liable for the default of another is a contract of guarantee.
    • It cannot be an independent liability.
      • It has to be a promise to pay on default of principal debtor
      • Cannot be a promise to be the debt instead of the principal debtor
  2. Essential Features

    • Principal Debt
      • A Recoverable debt must exist.
        • As the purpose of a guarantee is to secure the payment of a debt, the existence of a recoverable debt is necessary.
        • Swan v. Bank of Scotland
          • A banker's customers overdraft was guaranteed by the defendant.
            • Such overdrafts were declared void by statute.
              • Not recoverable as there is nothing due.
      • Guarantee of a Minor's Debt.
        • Where a minor's debt has been knowingly guaranteed, the surety should be held liable as a principal debtor.
        • Kashiba v. Shripat
          • Surety Bond by minor for money borrowed for litigation that was not necessary.
          • A person can contract to guarantee the performance by a third person of a duty of imperfect obligation.
            • In such a case, the surety is not a collateral, but a principal contract.
      • Section 126
    • Consideration
      • Section 127
      • If loan is given, or goods are sold on credit on the basis of a guarantee, there is sufficient consideration.
        • If there is no consideration, there is no question of enforcing guarantee.
      • Guarantee for past debt.
        • Gulam Husain Khan v. Faiyaz Ali Khan
          • A lessee agrees to pay a sum through installments.
            • A person executes a surety bond to pay the amount in case of default.
              • Guarantee for past debt held to be sufficient consideration. Anything done for the benefit of the principal debtor.
        • SICOM v. Padmashri Mahipatrai Shah
          • Guarantee executed after release of financial assistance to the borrower.
            • Past Consideration is valid consideration.
      • Any benefit to the principal debtor is sufficient to constitute consideration.
        • Prasanjit Mahta v. United Commercial Bank
          • Sureties argued that they had provided guarantee without the request of the principal debtor, therefore they were not liable.
            • Relationship can be between creditor and surety, as opposed to one between all 3 parties, therefore request of the principal debtor is irrelevant.
    • No Misrepresentation or concealment.
      • Responsibility of the principal debtor to ensure that the surety is in possession of all relevant facts.
        • Section 142
          • Guarantee obtained through misrepresentation invalid.
        • Section 143
          • Guarantee obtained through concealment invalid.
    • Need not be written
      • Section 126
      • Guarantee can be written or oral.

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