Etymology[ edit ] Guarantee is sometimes spelt "guarantie" or "guaranty".
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In those countries where the municipal law is based on the Roman law , sureties usually possess the right which may, however, be renounced by them of compelling the creditor to insist on the goods, etc.
However, this beneficium divisionis, as it is called in Roman law, is recognized by many existing codes. It is also permissible for the creditor to obtain redress by means of a set-off or counterclaim , in an action brought against him by the surety. On the other hand, the surety may now, in any court in which the action on the guarantee is pending, avail himself of any set-off which may exist between the principal debtor and the creditor.
Moreover, if one of several sureties for the same debt is sued by the creditor or his guarantee, he can, by means of a third-party complaint, claim contribution from his co-sureties towards the common liability. Independent proof of the surety's liability under his guarantee must always be given at the trial.
The creditor cannot rely on admissions made by or a judgment or award against the principal debtor. As regards the surety's rights against the principal debtor, where the guarantee was made with the debtors consent but not otherwise,  after he has made default, be compelled by the surety to exonerate him from liability by payment of the guaranteed debt. In the event of the principal debtor's bankruptcy, the surety can in England act against the bankrupt's estate, not only in respect of payments made before the bankruptcy of the principal debtor, but also, it seems, in respect of the contingent liability to pay under the guarantee.
If the creditor has lost these securities by default or laches or rendered them otherwise unavailable, the surety is discharged pro tanto. This right, which is not in abeyance till the surety is called on to pay extends to all securities, whether satisfied or not. This particular right is not the result of any contract, but is derived from a equity , on the ground of equality of burden and benefit, and exists whether the sureties be bound jointly, or jointly and severally, and by the same, or different, instruments.
There is, however, no right of contribution where each surety is severally bound for a given portion only of the guaranteed debt; nor in the case of a surety for a surety;  nor where a person becomes a surety jointly with another and at the latter's request. Contribution may be enforced, either before payment, or as soon as the surety has paid more than his share of the common debt;  and the amount recoverable is now always regulated by the number of solvent sureties, though formerly this rule only prevailed in equity.
In the event of the bankruptcy of a surety, proof can be made against his estate by a co-surety for any excess over the latter's contributive share. The right of contribution is not the only right possessed by co-sureties against each other, but they are also entitled to the benefit of all securities which have been taken by any one of them as an indemnity against the liability incurred for the principal debtor.
The Roman law did not recognize the right of contribution among sureties. It is, however, sanctioned by many existing codes. The governing principle is that if the creditor violates any rights which the surety possessed when he entered into the suretyship, even though the damage is only nominal , the guarantee cannot be enforced.
The surety's discharge may be accomplished 1 by a variation of the terms of the contract between the creditor and the principal debtor, or of that between the creditor and the surety;  2 by the creditor taking a new security from the principal debtor in lieu of the original one; 3 by the creditor discharging the principal debtor from liability; 4 by the creditor binding himself to give time to the principal debtor for payment of the guaranteed debt; or 5 by loss of securities received by the creditor in respect of the guaranteed debt.
The first four of these acts are collectively termed a novation. In general whatever extinguishes the principal obligation necessarily determines that of the surety, not only in England but elsewhere. The death of a surety does not per se determine the guarantee, but, save where from its nature the guarantee is irrevocable by the surety himself, it can be revoked by express notice after his death, or by the creditor becoming receiving constructive notice of the death; except where, under the testator's will , the executor has the option of continuing the guarantee, in which case the executor should specifically withdraw the guarantee in order to terminate it.
If one of a number of joint and several sureties dies, the future liability of the survivors continues, at least until it has been terminated by express notice.
In such a case, however, the estate of the deceased surety would be relieved from liability. In most cases, borrowers get approvals in as less as 48 hours. Bad Credit is OK — Getting approved for a car finance loan with conventional lender could be extremely difficult.
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