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  3. A guarantee is defined in the Statute of Frauds 1677 as "a written promise m

A guarantee is defined in the Statute of Frauds 1677 as "a written promise m

游客2025-06-20  15
问题     A guarantee is defined in the Statute of Frauds 1677 as "a written promise made by one person to be collaterally answerable for the debt, default, or miscarriage of another".
    There are therefore three parties involved in the guarantee situation, although only two are in a contractual relationship arising out of the guarantee document, the creditor and the guarantor. The party who is owed the money, or whose rights are protected, is known as the creditor and the person owing him the money, or who is under an obligation to him, is called the principal debtor. The guarantor, or surety as he is sometimes called, therefore assumes a secondary liability and in effect says to the creditor: "if the principal debtor does not meet his liabilities to you, then I will".
    There are similarities between a contract of guarantee and a contract of indemnity, but the difference is that an indemnifier assumes primary responsibility himself and in effect he says to the creditor "I will see that you are paid". The distinction is important, for whereas a guarantee to be enforceable must be evidenced in writing according to the Statute of Frauds 1677, this is not the case with an indemnity and an indemnity given orally would be enforceable, although understandably it might be difficult to prove to a court that such a contract had been entered into.
    In point of fact, nearly all bank guarantee forms are drafted in such a way that not only do they constitute a contract of guarantee, but they are also an indemnity. The advantage of this is that it gives the bank rights against the party signing, even though the bank might find itself with no fights which it could exercise against the principal debtor, for in such circumstances a contract of guarantee alone would be unenforceable. In other words, enforcement is not dependent on the efficacy of the Contract between the creditor and the principal debtor.
    Guarantees may be executed by hand or under seal, but if by hand they must be supported by consideration. The consideration usually given by a bank is of course the loan of money to the principal debtor, or the agreement to continue to allow borrowing facilities for a further period of time. [br] The main difference between a contract of guarantee and a contract of indemnity is that ______.
选项 A、an indemnifier takes up primary liability to the creditor
B、an indemnity must be evidenced in writing
C、a guarantee can be given orally or in writing
D、an indemnity would be unenforceable
答案 A
解析 文章第三段提到but the difference is that… "I will see that you are paid"。担保合同和赔偿担保书的最大区别在于担保合同中的担保人承担的是第二性的付款责任，只有在主债务人违约的情况下担保人才承担责任；而赔偿担保书的担保人则承担第一性付款责任。
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