Editing Guarantee (section)

====Statute of frauds====
{{Main|Statute of frauds}}
The statute of frauds does not invalidate a verbal guarantee, but renders it unenforceable. It may therefore be available to support a [[defense (legal)|defense]] to an action, and money paid under it cannot be recovered.  An [[indemnity]] is not a guarantee within the statute, unless it contemplates the primary liability of a third person. It need not, therefore, be in writing when it is only a promise to become liable for a debt if the person to whom the promise is made should become liable.{{sfn|de Colyar|1911|p=653}}<ref>''Wildes'' v. ''Dudlow'', L.R. 19 Eq. 198; ''Harburg India-Rubber Co.'' v. ''Martin'', 1902, 1 K.B. 786; ''Guild'' v. ''Conrad'', 1894, 2 Q.B. 885 C.A.</ref>

Neither does the statute apply to the promise of a [[del credere]] agent to make no sales on behalf of his principal except to persons who are absolutely solvent, and renders the agent liable for any loss that may result from the non-fulfilment of his promise. A promise to give a guarantee is within the statute, though not one to procure a guarantee. The general principles which determine what are guarantees within the statute of frauds are: (1) the primary liability of a third person must exist or be contemplated;<ref>''Birkmyr'' v. ''Darnell'', 1 Sm. L.C. 11th ed. 299; ''Mounistephen'' v. ''Lakeman'', L.R. 7 Q.B. 196; L.R. 7 H.L. 17</ref> (2) the promise must be made to the creditor; (3) there must be no liability by the surety independent of an express promise of guarantee; (4) the main object of the parties to the guarantee must be the fulfilment of a third party's obligation;<ref>See ''Harburg India-Rubber Comb Co.'' v. ''Martin'', 1 K.B. 778, 786 (1902)</ref> and (5) the contract entered into must not amount to a [[sales|sale]] by the creditor to the promiser of the security for a debt or of the debt itself.{{sfn|de Colyar|1911|p=653}}<ref>See de Colyar's ''Law of Guarantees and of Principal and Surety'', 3rd ed. pp. 65–161, where these principles are discussed in detail.</ref>

As regards the kind of note or memorandum of the guarantee that will satisfy the statute of frauds, "no special promise to be made, by any person after the passing of this act, to answer for the debt, default or miscarriage of another person, being in writing and signed by the party to be charged, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit or other proceeding, to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing or by necessary inference from a written document."<ref>Mercantile Law Amendment Act 1856 §3</ref> Any writing embodying the terms of the agreement between the parties and signed by the party to be charged is sufficient; and the idea of agreement need not be present to the mind of the person signing.<ref>''In re'' Hoyle - Hoyle v. Hoyle, I Ch., 98 (1893)</ref> It is, however, necessary that the names of the contracting parties should appear somewhere in writing; that the party to be charged, or his agent, should sign the agreement or another paper referring to it; and that, when the note or memorandum is made, a complete agreement shall exist. The memorandum need not be contemporaneous with the agreement itself.{{sfn|de Colyar|1911|p=653}}<ref>As regards the stamping of the memorandum or note of agreement, a guarantee cannot, in England, be given in evidence unless properly stamped. [[Stamp Act]] 1891. A guarantee for the payment of goods, however, requires no stamp. Nor is it necessary to stamp a written representation or assurance as to character within [[9 Geo. 4]]. c. 14.  If under seal, a guarantee may require an [[ad valorem]] [[Revenue stamp|stamp]]; and, on certain prescribed terms, the stamps can be affixed any time after execution. Stamp Act 1891, 15, amended by 15 of the Finance Act 1895</ref>