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

游客2025-06-19 19

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] Almost all bank guarantees are designed as not only a contract of guarantee, but also an indemnity so that______.

选项 A、the bank can always protect its right regardless of the efficacy of related loan agreements
B、the principal debtor would be liable
C、the creditor may find the contract unenforceable against the primary debtor
D、the efficacy of loan agreement is more important than ever

答案 A

解析文章第四段提到The advantage of this…would be unenforceable。实践中，几乎所有的银行担保文书都做成既是担保合同又是赔偿担保书的形式，这样可以最大范围地保障作为债权人的银行的权利，使银行权利在主债务人违约却无法得到赔偿的情况下，可以直接按照赔偿担保书约定向赔偿担保人要求执行，而不管债权人与债务人的合同约定情况。

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