Warranty is a legal term that is more comprehensive and higher than a guarantee or "security". Most often appoint personal transactions in a one-person manner, to gain trust, confidence or credit for others, is involved to be responsible for it. It may also refer to an agreement in which claims, rights or possessions are guaranteed. It must be distinguished from everyday "personal guarantees" that Collateral is a legal concept that produces economic effects. Personal guarantees are often used to refer to appointments made by an individual who is supported by, or guaranteed through, an individual word. In the same way, guarantees produce a legal effect in which one party affirms the other person's promise (usually paying) by promising themselves to pay in case of default.
In law, the guarantor is called a guarantor or a "surety". The person granted the guarantee is a creditor or a "obligee"; while the person whose payment or performance is guaranteed is thus called "obligor", "principal debtor", or simply "principal".
Suretys has been classified as follows:
- Those in whom there is an agreement to form, for a particular purpose, a principal relationship and a guarantee, in which the creditor's agreement is guaranteed to be a party;
- in which there is a similar agreement between the principal and the guarantor only, whose creditor is a foreigner;
- where, without such a contract, there is a primary and secondary obligation of two persons for one and the same debt, ie debt, such as between both, one of the persons only, and not both of the two , so that the other, if he should be forced to pay it, would be entitled to get reimbursed from the person by whom (by either) it should have been paid.
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Etimologi
The warranty is sometimes spelled "guarantie" or "guaranty". This is derived from the French "warrant" form, from the Germanic word which appears in German as Maps Guarantee
General law
English
In UK law, collateral is a contract in which the person (the guarantor) signs an agreement to pay the debt, or affects the performance of some tasks by a third person who is primarily responsible for the payment or performance. The level of debt that the guarantor is responsible for this debt is co-wired to the obligations of third parties. This is a collateral contract, which does not extinguish the original liability for payment or performance and is secondary to the main obligations. It is void and void if the original obligation fails. Two forms of guarantees exist in the UK, (1) Guarantees of creating conditional payments, where if the principal fails, the guarantor will pay. Under this form, the guarantee can not be applied until a failure occurs. (2) The "Look-to-Obligation" obligation under which the guarantor's obligation is to ensure that the principal will perform the obligation. The failure of the principal to do so will automatically make the guarantor breach his contractual obligations, in which the creditor may sue.
The obligation of a guarantor in the law depends on the principal debtor, and when the principal obligation stops the guarantor as well, except in certain cases where the disposal of the principal debtor is by legal operation. The broad secondary nature of the guarantor's responsibility along with the fact that the guarantee is a contract to answer a default, a debt, or a miscarriage; greatly distinguishes the guarantee of compensation. If, for example, someone mistakenly assumes that someone is accountable to them, and that guarantees are given on the wrong basis, the guarantee is not valid under contract law, because the foundation (the other is responsible) fails.
No specific terms are required to establish a guarantee. What differentiates insurance from insurance is there is no difference between the word "insurance" and "guarantee", but the substance of the contract entered by the parties.
The terms of the law of guarantees are, in the UK, prescribed in advance by the law of fraud, which provides in part 4 that "there is no action to be taken to prosecute the defendant for a special promise to repay the debt, default or miscarriage of the person other than the agreement to which the action will be taken, or some of the memorandum or records thereof, shall be in writing and signed by the party to be prosecuted thereto, or any other person therefrom thereto authorized thereto ". This is to say that the guarantee is invalid but can not only be done by selecting in person. Requirements for written signatures are clarified in Elpis Maritimes Co v Marti Chartering Co Inc ("Maria D") [1992] 1 AC 21 and J Pereia Fernandes SA v Mehta [2006] EWHC 813 (Ch) . In the latter case, there is a contract which can be enforced either by a written agreement signed by the guarantor or its agent OR; if the warranties are verbal, the lonely note or lonely note of a treaty may make such a guarantee be practicable. In the former, the court stated enough that it was written or printed by the guarantor, the initial in the email was enough but the standard header name in the email was not. The court was convinced that the minor action was enough to involve the Statute because it had long been known that a single fingerprint, or "X" was enough. The 2000 Electronic Communications Act creates the power to issue legal instruments to modify the law to be in line with the use of modern electronic communications. This is in accordance with Article 9 of the European Union Directive on Electronic Commerce 2000, specifically enabling exceptions to the 'written' guarantee requirements. It has even been held that clicking the button to confirm the personal details simply drops the Statute of Frauds requirements.
The second requirement is the Tenterden Lord's Law stipulating that "no action shall be taken to prosecute a person for or by reason of any representation or warranty made or provided concerning or related to any character, conduct, credit, ability, trade or transaction of any other person, with the intent or purpose that such other person may obtain credit, money or goods on unless such representation or guarantee is made in writing signed by the party to be billed with it ". The Lord Tenterden's Law, which applies to incorporated companies and individual persons, is deemed necessary by the avoidance of fraud laws, treating collateral for debts, defaults or miscarriages, when not written as fraudulent representations, resulting in damage. for a tort.
Statuta penipuan
The fraud law does not void the verbal warrant, but makes it unlawful. It may therefore be available to support the defense of an action, and the money paid beneath it can not be recovered. Indemnity is not a guarantee in the law, unless it reflects on the main obligations of the third person. It is not necessary, therefore, to be made in writing when it is merely a promise to become liable for debt if the target person becomes responsible.
There is also no law applicable to the promise of a del credere agent not to sell on behalf of its principal except to those who are absolutely free, and to make the agent liable for any loss which may result from unfulfilled promises. The promise to guarantee is within the law, although no one guarantees it. The general principles that determine what constitutes guarantees in fraud laws are: (1) the primary obligation of a third person must exist or be contemplated; (2) the promise must be given to the creditor; (3) there is no obligation by an independent guarantee of clear promise of warranty; (4) the main object of the parties to be guaranteed shall be the fulfillment of third party liability; and (5) the contract entered into does not necessarily amount to the sale by the creditor to the party promising security for debt or from the debt itself
Regarding the type of note or guarantee note that will meet the fraud laws, "no special promise to be made, by any person after graduating from this action, to respond to debt, default or miscarriage of others, is in writing and signed by the party to be prosecuted, or any other person by him to be legally authorized, shall be deemed unlawful to support an act, lawsuit or other act, to charge the person by whom the promise will be made, by reason only that the consideration for such an undertaking does not arise in writing or with the necessary conclusion of the written document. "Any writing that establishes the terms of an agreement between the parties and signed by the party to be billed is sufficient; and the notion of agreement does not have to be in the mind of the person who signed. However, it is necessary that the names of the contracting parties appear somewhere in writing; that the party to be billed, or its agent, shall sign an agreement or other paper referring to it; and that, when a note or memorandum is made, a complete agreement must exist. The Memorandum of Understanding does not need to be in accordance with the agreement itself.
United States
In the United States, but not elsewhere, there is a difference between the guarantor and the guarantor . A guarantee is usually tied to the principal, at the same time and with equal consideration, while the guarantor contract is a separate self-employment and the guarantor is not liable until due diligence has been granted to force the principal debtor to make either standard whatsoever. There is no contract privacy between the guarantor and the principal debtor. Conversely, the contractual guarantee with the creditor and not responsible to the creditors.
other common law jurisdictions
In India, warranties may be oral or written while in Australia, Jamaica and Sri Lanka must be in writing.
In the Statute of Irish Fraud there are provisions that are identical to those found in the British Fraud Statute.
Civil Code
According to various existing civil regulations, a guarantee, when the underlying obligation is "worthless", is null and void unless its invalidity is due to the personal incompetence of the principal debtor In some countries, however, the personal incapability of a small to borrow is sufficient to eliminate loan guarantee made to him. The Egyptian Code ensures that sanctions are expressly incorporated into "in the view of the debtor's wishes from legal capacity" for a valid contractual obligation of the Portuguese Code defending the underwriter's obligations, with respect to the unlawful principal obligation, until the latter has been revoked
According to some codes, civil rationing is divided into conventional, legal and judicial, while Spanish code further divides them into haphazard and for valuable consideration.
The codeword of Germany demands a guarantor's pledge to be verified by writing in which he has not carried out its primary obligations. The Portuguese Code provides a guarantee that can be proved by all modes established by law for proof of principal contract. According to most of the civil code, a guarantee like any other contract can usually be done verbally in the presence of witnesses and in certain cases (where for example a large sum of money is involved) sous signature priests or by judicial instruments or a notary. French and Belgian codes, in addition, provide suretyship that is not considered but should always be expressed
Contract law
In the UK the general legal requirements of collateral are the same as those of other contracts. Collective agreement of two or more parties, competence for contract and valuable consideration. Bids for warranties must be received, either by express or implied acceptance.
If collateral for the guarantee has been obtained by fraud by the person provided, no contract is binding. Fraud may consist of oppression, concealment or misinterpretation. However, only facts that are really material to the risks involved need to be disclosed spontaneously. The competence of the parties to sign a guarantee contract may be affected by the insanity or intoxication of the guarantor, if known to the creditor, or by any defect. Common defects are minors.
In some guarantees, the consideration is "intact". For example, in consideration for a given lease, the guarantor becomes responsible for the performance of the lease agreement. In other cases it is "fragmented" or supplied from time to time, since a guarantee is granted to secure the balance of a bank account running for the goods supplied. When the consideration is "intact", the guarantee goes through the lease duration and can not be canceled. When such considerations are "fragmentary", unless the warranty provides otherwise, the guarantor may at any time terminate his liability under warranty.
Failure of total consideration or illegal consideration by the party providing the guarantee will prevent it from taking effect. Although in all countries, mutual consent of two or more parties is essential for the establishment of any contract, a consideration is not considered a necessary element. Thus in Scotland the contract can be binding without consideration to support it.
Liability
The responsibility underwritten by the guarantor under his/her guarantees depends on the provisions, and not always with the principal debtor. Nevertheless, it is clear that the guarantor's obligation can not be exceeded from the principal. With many existing civil regulations, however, guarantees imposing on guarantor obligations greater than the principal are not void but can only be reduced to the principal. However, in India, the responsibility of the guarantor is, unless otherwise specified by the contract, is coexistent with the principal.
Where the guarantor's responsibility is less extensive in number than the principal debtor, the question has arisen in England and America, whether the guarantor is solely responsible for the part of the debt equal to the limit of his obligations, or, to that extent, to the entire debt. Guarantor can not be held liable unless the loss suffered for the reason of default is guaranteed. In addition, in case of collateral together and some by some sureties, except all signs are not responsible underneath. The limitation of the guarantor's responsibility shall be construed so as to effect what is reasonably inferred as the intent of the parties as stated in writing. In dubious import cases, other avenues to parole proofs are allowed, to clarify, but not contradict, written evidence of warranties.
As a general rule, the guarantor is not liable if the principal debt can not be enforced. It has never really been decided in the UK whether this rule applies either in cases where the principal debtor is underage and on account it is not liable to the creditor. When the director guarantees the performance of their company from a contract that is outside their authority, and therefore not binding on the company, the responsibility of the directors may be applied to them personally.
Termination of obligation
It is not always easy to determine how long the responsibility is under guaranteed survival. Sometimes the warranty is limited to a single transaction, and is clearly intended for security against only one particular default. On the other hand, as is often the case that it is not exhausted by a single transaction on that faith, but extends to a series of transactions, and keeps the security up until it is repealed, either by the actions of the parties or by the death of its surety. This is then called ongoing security.
There is no standard rule of interpretation that determines whether a guarantee is a continuation or not, but each case must be assessed on the basis of its individual merits. Often, in order to achieve the correct construction, it is necessary to examine the circumstances surrounding it, which often reveal what subjects are contemplated by the parties when a guarantee is provided, and what the scope and object of the transaction is between them. The most sustainable guarantee is the ordinary business securities for a down payment made or goods supplied to the principal debtor or other bonds for the good conduct of persons in a public or private office or employment. With regard to the last class of ongoing security, the guarantor's responsibility is, in general, repealed by changes in the constitution of persons to or for whom a guarantee is granted. In the UK, Treasury Commissioner Her Majesty to change any security character, for good behavior by the head of public department granted by the company for the implementation of office tasks or work in the public service.
Limitation of responsibilities
Before the guarantor can be held liable for his guarantee, the principal debtor must make a default. However, when this occurs, the creditor, in the absence of a written consent to the contrary, may sue the surety, without letting him know that the failure has occurred before proceeding against the principal debtor or using securities for the debt received from the latter. In countries where municipal laws are based on Roman law, sureties usually have the right (which may, however, be abandoned by them) compel the lender to insist on the goods, etc. (if any) of the main debtor being the first "discussed," ie , valued and sold, and adjusted for the liquidation of the secured debt before requesting assistance to the sureties. This right "corresponds to the general sense of justice and the natural justice of mankind". In Britain, this right is never fully recognized, nor does it apply in America and Scotland.
In the UK, however, before a payment request has been made by the creditor on the guarantor, the latter may, as soon as the principal debtor has made a default, force the creditor, to indemnify the costs and expenses, to sue the principal debtor if the latter is a solvent and capable pay. and similar drugs are also open to guarantor in America. Neither in these countries nor in Scotland there is not a single sureties, when it is demanded for the entire debt secured by the creditors, forcing the latter to divide its claims among the sureties, and deduct it to the part and proportion of each guarantor. However, this beneficiium divisionist , as mentioned in Roman law, is recognized by many existing codes.
Enforcement of responsibilities
The usual mode in the UK in enforcing obligations under warranty is by acts in the High Court or District Court. It is also permissible for creditors to obtain compensation through set-off or counterattack, in the acts alleged to by the guarantor. On the other hand, the guarantor can now, in any court where the action on the guarantee is pending, avail himself of any set-off that may exist between the principal debtor and the creditor. In addition, if one of the few sureties for the same debt is sued by the creditor or his guarantee, he may, by means of a third party complaint, claim the contribution of his associates against the joint liability. An independent proof of the guarantor's responsibility under his/her guarantee must always be given in the hearing. The creditor can not rely on receipts made by or judgment or appreciation of the principal debtor.
A person who is responsible as a guarantor for another person under the guarantee has the right to the person under warranty. Regarding the rights of the guarantor against the principal debtor, where the guarantee is made with the debtor's consent but not vice versa, after he fails, is forced by the guarantor to relieve him of responsibility with payment of secured debt. If the guarantor has paid a portion of the guaranteed debt, the guarantor is entitled to a rating as a creditor for the amount paid and to demand repayment.
In the event of bankruptcy of the main debtor, the guarantor may in the UK act against a bankrupt estate, not only in the case of payments made before the bankruptcy of the main debtor, but also, apparently, in connection with contingent liability to pay under the guarantee. If the lender has acted, the guarantor who has paid the secured debt has the right to all dividends received by the creditor of the bankrupt in connection with the secured debt, and to stand in place of the creditor for future dividends. The underwriter's rights to creditors in the UK can be made even by the person who was originally the principal debtor, but has since become the guarantor, by arrangement with the creditor.
Warranty rights to creditor
The underlying rights of the guarantor of the creditor grant him the right, after payment of secured debt, for the benefit of all securities that the creditor holds against the principal debtor. If the creditor has lost this security by default or laches or grant it if it is not available, then the guarantee is issued pro tanto. This right, which is not postponed until the guarantor is called to pay extends to all securities, whether satisfied or not. "[E] a very tough person for debt or liability of another person, or liable with another for any debt or liability, shall pay the debt or perform the duty, be entitled to be assigned to him, or to his trustee, any judgment, specialization, or other security, to be held by the creditor in respect of such debt or duty, whether valuation, specialization or other security shall be or is not considered lawful to be fulfilled by debt payments or performance of duties, and the person shall have the right to stand on the creditor's premises, and to use all solutions, and, where necessary, and appropriate remedies, to use the name of the creditor, in any action or any other act of law or equity, to obtain from the principal debtor, or co-surety, co-contractor , or co-debtor, depending on the situation, compensation for the down payment made and the losses suffered by the person y who shall pay such debt or perform such duty, and such payments or performance made by such a surety shall not be accountable in any manner or any other action taken by him, provided that always there is no co-surety, co-contractor , or the co-debtor has the right to recover from other colleagues. surety, co-contractor or co-debtor, in the foregoing manner, more than a fair proportion, such as between the parties themselves, the latter shall be liable. "The guarantor's right to be subsidized on payment by him from secured debt, for all creditor's rights against the principal debtor recognized in America and many other countries.
Warranty rights to other sureties
The guarantor is entitled to the contribution of the joint guarantor in respect of their joint responsibilities. This special right is not the result of any contract, but is derived from equity, on the basis of load and benefit equations, and whether it is tied together, or together and little, and by the same or different instruments. However, there is no right to a contribution in which each guarantor is limited to a limited portion of the guaranteed debt; or in the case of a guarantor for the guarantor; or where a person becomes a guarantor together with another and at the request of the latter. Contributions may be established either before payment, or as soon as the guarantor has paid more than his share of the ordinary debt; and the amount that can be recovered is now always governed by the number of solvent surveys, although before this rule only applies in equity. In the event of bankruptcy warranties, evidence may be made against its real by co-surety for any excess over the last contributing part. The right of contribution is not the only right owned by peers to each other, but they are also entitled to the benefit of all securities that one of them has taken as compensation for the obligations incurred for the principal debtor.
Roman law does not recognize the right of contribution among the sons. Nevertheless, sanctions by the many codes are there.
Disclaimer
The most productive land of the guarantor usually arises from the creditor's behavior. The governing principle is that if the creditor violates any of the rights that the guarantor has when he enters the suretyship, even if the damage is only nominal, the guarantee can not be enforced. The disposal of the guarantor may be settled (1) by variation of the terms of the contract between the creditor and the principal debtor, or that between the creditor and the surety; (2) by creditors who take new securities from the principal debtor in lieu of the original; (3) by the creditor issuing the principal debtor of liability; (4) by the creditor who binds himself to allow time to the principal debtor for payment of the secured debt; or (5) with the loss of securities received by the creditor in respect of the secured debt. The first four of these actions are collectively referred to as innovation. In general, anything that extinguishes the main obligation necessarily dictates that the guarantee, not only in England, but elsewhere. With most of the civil code the guarantor is eliminated by the creditor's behavior that is inconsistent with the rights of the guarantor, despite the prevailing rules in UK, Scotland, America and India that waive the guarantee of liability when the creditor extends without the consent of the guarantee of time to fulfill the main obligations, two existing civil code, rejected by the majority of them. The withdrawal of a surety contract by the actions of the parties, or in certain cases by the death of the surety, may also operate to free the surety.
The death of a guarantor does not directly determine the guarantee, but, except from where the nature of the guarantee can not be annulled by the guarantor itself, it may be withdrawn with strict notice after his death, or by the creditor to receive constructive notice of death; except where, under the will, the implementer has the option of continuing the guarantee, in which case the executive must specifically withdraw the guarantee to terminate it. If one of several sureties together and some dies, the future responsibilities of the victims continue, at least until it ends with a lightning notification. In such a case, however, the property of the guarantor of the deceased shall be exempt from liability. Restrictive laws may preclude the right of action on guarantees that are subject to variations by law in any U.S. country such warranty wants to apply.
See also
- Money back guarantee
- Service warranty
References
This article combines text from publications now in the public domain: Ã, de Colyar, Henry Anselm (1911). "Ensure". At Chisholm, Hugh. EncyclopÃÆ'Â|dia Britannica . 12 (issue 11). Cambridge University Press. pp.Ã, 652-656.
External links
- Australian Contract Law
- Uniform Commercial Code (Contract Law of the United States)
- European Contract Law Principles
- Summary of LexisNexis Capsule: Contract
Source of the article : Wikipedia
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