Agreement Is There In Contract Of Guarantee

In England, the usual way to enforce liability under a guarantee is through recourse to the High Court or a County Court. It is also permissible for the creditor to remedy an action brought against him by the surety by means of set-off or counterclaim. On the other hand, the guarantor can now benefit from any set-off that may exist between the principal debtor and the creditor before any court before which the appeal is pending. In addition, if one of the guarantees of the same debt is sued by the creditor or his guarantee, he may request, by a recourse of third parties, a contribution of his co-guarantees to the joint liability. Independent proof of the surety`s responsibility under his guarantee must always be provided at the main hearing. The creditor may not invoke a confession, judgment or award against the principal debtor. [60] [61] Direct consideration between the guarantor and the creditor is not necessary. It is sufficient (for consideration purposes) that something is done or a promise is made in favour of the principal debtor. It is assumed that the consideration received by the principal debtor is sufficient consideration for the collateral. The provision of section 127 provides that anything done or any commitment made to the principal debtor may constitute sufficient consideration to ensure security. There must be consideration between the creditor and the guarantor to make the contract enforceable. The consideration must also be legal. In a collateral agreement, the consideration received by the principal debtor is considered sufficient consideration for the collateral.

In each guarantee contract, there is a tacit promise by the principal debtor to keep the guarantor unharmed and the guarantor is entitled to recover from the principal debtor the amount he has legally paid under the guarantee. This is explained by the fact that the guarantor has suffered a loss due to the non-fulfillment of the promise by the main debtor and that, therefore, the guarantor is entitled to compensation by the debtor in the absence of a contract to the contrary, the responsibility of a guarantor with the responsibility of the main debtor. This means that the guarantor is liable in the same as the principal debtor. There are three parties in a guarantee contract: the liability of a guarantor under his guarantee depends on his conditions and is not necessarily coextensive with that of the principal debtor. However, it is clear that the guarantor`s obligation must not exceed that of the contracting authority. [45] However, according to many existing civil codes, a guarantee that imposes on the guarantor a liability greater than that of the principal is not out of the question, it is simply reducible to that of the principal. [46] However, in India, unless otherwise provided in the contract, the guarantor`s liability must be treated in the same way as that of the principal. [47] Illustration On Priya`s guarantee, Anita Sita lent 100,000 rupees. This debt is also secured by a guarantee for the debt which is the rental of Sita`s house.

Sita is in arrears in paying the debt and Priya has to pay the debt. After the payment of Sitas` commitments, Priya is entitled to obtain the rental deed in its favor. Under article 135, if the creditor enters into an agreement with the principal debtor for the transaction without the agreement of the guarantor or promises to give him time or not to sue him, the guarantor is discharged. However, if the contract is concluded between the creditor and a third party and not with the principal debtor in order to allow more time for the principal debtor, the surety is not respected (ยง 136). . . .