Surety Agreement Formalities
There are a number of important principles for guarantee instruments, including: according to Acting Judge Savage, a guarantee contract requires a valid principal obligation with a person other than the surety as the debtor and the surety`s liability arises only when that principal obligation has been concluded. [Dormell Properties 282 CC v Bamberger (20191/14)  ZASCA 89 (29 May 2015)). The Tribunal decided that it was not necessary for the representative of the Bank to inform them and the other Directors who have signed guarantee deeds in their personal capacity of the risks associated with them. Directors as guarantors cannot escape liability if they have not understood it (Absa Bank Ltd v Trzebiatowsky and Others 2012 (5) SA 134 (ECP). In the case of Beaux Lane (SA) Properties (Pty) Limited v Marais  OJL 32961, the lessor successfully sued the Marais, which signed a deed of guarantee for the rents, payments and taxes of the late tenant, as well as damages for infringement. Non-termination of clauses In principle, the parties are free to terminate their contract at any time by a simple agreement. Since the parties can indeed impose formalities for the establishment and modification of the contract, it is logical that they can do so to terminate the contract. – Impala Distributors vs. Taunus Chemical Manufacturing: Accepted that the parties may impose formalities for cancellation.
It is now customary to include in a written contract a non-termination clause that imposes certain formalities to terminate the contract. Normally, write and sign. Formalities defined by the parties The parties may impose formalities of establishment, modification or deletion and neither of the parties may derogate from these formalities. The amount that the creditor can demand from the guarantee depends on the signature by the guarantor of the agreement that binds him for a limited or unlimited amount. The parties often agree that their agreement should be reduced to the letter and signature. They may have two different objectives in mind: 1. To facilitate proof of contractual terms. As a result, the agreement is binding, even if it is never reduced to written form. 2.
Your consent is only required if it has been reduced and signed in writing. Consequence: the previous oral agreement has no contractual force. It is only when the defined formalities have been completed that it will become a contract. Neither party can force the other to sign. What was the goal of the parties in the lead: the fact. General presumption: the intention was to facilitate proof of contractual conditions. – the party claiming otherwise (this purpose = conceived as a formal requirement for validity) bears the burden of proof. – the intention of what “written” means: decisive. o In the absence of proof of their intention, a contract corresponding to Article 12 of ECTA fulfils the formality of the written formality.
Even if it were provided that there would be no contract until it was reduced to the written form, the parties can change their mind explicitly or tacitly: the verbal agreement would immediately become contractual. Main case: Goldblatt vs. Fremantle: The court ruled that no contract was valid because the parties intended to enter into their agreement in writing, including the signing by both parties. In most surety contracts, the guarantor engages as guarantor and accomplice. This means that the obligations of the guarantor are equivalent to those of the principal debtor and that the guarantor is jointly and severally liable to the creditor. . . .
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