Guarantee

“ The guarantee I alluded to would be the pledge of one, whose loyalty to the Government stands above suspicion; one, whose services have met no requital, but whose reward only awaits the moment of demanding it ”

“ A party giving a letter of guarantee, has a right to know, whether it is accepted, and whether the person to whom it is addressed, means to give credit on the footing of it, or not. It may be most material, not only as to his responsibility, but as to his future rights and proceedings. ”

“ Different, however, is the case in which a number of Powers have collectively and severally guaranteed a certain object. Then, not only as a body but also individually, it is their duty to interfere in any case of violation of the object of guarantee. ”

“ The agreement to accept is a transaction between the guarantee and guarantor, and completes that mutual assent necessary to a valid contract between them. It was, in the case cited, the consideration for the promise of the guarantor. And wherever a sufficient consideration of any description passes directly between them, it operates in the same manner and with like effect. It establishes a privity between them and creates an obligation. ”

“ An offer to guarantee is not binding until it has been accepted, being revocable till then by the party making it. Unless, however, as sometimes happens, the offer contemplates an express acceptance, one may be implied, and it may be a question for a jury whether an offer of guarantee has in fact been accepted. Where the surety’s assent to a guarantee has been procured by fraud of the person to whom it is given, there is no binding contract. ”

“ Where one of a number of joint and several sureties dies, the future liability of the survivors under the guarantee continues, at all events until it has been determined by express notice. Moreover, when three persons joined in a guarantee to a bank, and their liability thereunder was not expressed to be several, it was held that the death of one surety did not determine the liability of the survivors. ”

“ The provisions in the guarantee that it is to stand and continue without notice of engagements and advances, and notwithstanding a change of partners in the plaintiff's firm, was designed, not to extend the guarantee beyond the first credit, but to modify it as a continuing guarantee, by dispensing with some of the qualities of such a guarantee. ”

“ No fixed rules of interpretation determine whether a guarantee is a continuing one or not, but each case must be judged on its individual merits; and frequently, in order to achieve a correct construction, it becomes necessary to examine the surrounding circumstances, which often reveal what was the subject-matter which the parties contemplated when the guarantee was given, and likewise what was the scope and object of the transaction between them. ”

“ A guarantee is a mercantile instrument, and to be construed according to what is fairly to be presumed to have been the understanding of the parties, without any strict technical nicety. If the guarantee stood alone, unexplained by the letter which accompanied it, it would undoubtedly be limited to a specific draft for 2000 dollars, and would not cover that amount in a bill for a larger sum; but the letter which accompanied it fully justifies the conclusion, that the defendant undertook to guaranty 2000 dollars in a draft for a larger amount. ”

“ Most continuing guarantees are either ordinary mercantile securities, in respect of advances made or goods supplied to the principal debtor or else bonds for the good behaviour of persons in public or private offices or employments. With regard to the latter class of continuing guarantees, the surety’s liability is, generally speaking, revoked by any change in the constitution of the persons to or for whom the guarantee is given. ”

“ The surety cannot be made liable except for a loss sustained by reason of the default guaranteed against. Moreover, in the case of a joint and several guarantee by several sureties, unless all sign it none are liable thereunder (National Pro. Bk. of England v. Brackenbury, 1906, 22 Times L.R. 797) . ”

“ So the guarantee and the free trial offer are essential features in letters that sell the farmer. In hundreds of letters from manufacturers of goods that are sold by mail to the farmer, nearly every one throws into prominence the guarantee and the free trial offer with money refunded if the purchase does not prove satisfactory.
A manufacturer of farm implements puts this guarantee into the first person effectively. ”

“ The question involved in the first instruction is, whether the guarantee contained in the letter is a limited or a continuing guarantee; or, in other words, whether is covered advances, acceptances and indorsements, in the first instance, to the amount of $8000, and terminated when these were discharged; or whether it covered successive advances, acceptances and indorsements made, to the same amount, at any future times, toties quoties, whenever the antecedent transactions were discharged. Upon deliberate consideration, we are of opinion, that it is a continuing guarantee ”

“ A guarantee given with every individual sold that he will stand by the purchaser for any fixed period agreed on and allow him to look microscopically into his inner mechanism.’ ‘Wanted, for a small and unhealthy country village, a thought-therapeutic, who could, if he wished, reside at a distance and project his spirit whenever a patient needed his power. ”

“ In so far as common or concerted action may not prove possible, each the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty. ”

“ The taking of oaths, the assigning of "con- servatores pacis," and the giving of hostages are now obsolete, but revenue is mortgaged, territory is pledged, and treaties of guarantee are entered into for this purpose. 6. A " transitory convention " operates at once, leaving Duration, no duties to be subsequently performed, but with reference to conventions of other kinds questions arise as to the duration of the obligation created by them, in other words, as to the moment at which those obligations come to an end. ”

“ And if, moved by the expectation of profit, or other motive, any citizen sufficiently substantial and trustworthy, will take on himself to hold society harmless, society must agree to his proposal. All it can rightly require is, that the guarantee against contingent injury shall be adequate ”

“ The general principles which determine what are guarantees within the Statute of Frauds, as deduced from a multitude of decided cases, are briefly as follows: (1) the primary liability of a third person must exist or be contemplated as the foundation of the contract (Birkmyr v. Darnell, 1 Sm. L.C. 11th ed. p. 299; Mountstephen v. Lakeman, L.R. 7 Q.B. 196; L.R. 7 H.L. 17) ; (2) the promise must be made to the creditor; (3) there must be an absence of all liability on the part of the surety independently of his express promise of guarantee ”

“ I answer for it, vouch for it.
garanti, n.m., -e, n.f., warrantee.
garantie (-tî) , n.f., warranty; guaranty; warranting, guaranteeing; making good; security, voucher, pledge. — accessoire; (jur.) collateral security. Sous-—; (—-—s) counterbound. — de droit; (jur.) implied warranty. Être — à quelqu’un de quelque chose; to pledge one’s self to any one for anything.
[268]
garantir, v.a., to guarantee; to warrant; to vouch for; to insure; to make good, to indemnify; to keep from; to protect, to defend, to shelter, to shield, to guard. Je lui ai garanti le fait ”

“ The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion) . Various guarantees create zones of privacy. ”

“ In one sense, all conditions are subsequent; in another, all are precedent. All are subsequent to the first stage of the obligation. /4/ Take, for instance, the case of a promise to pay for work if done to the satisfaction of an architect. The condition is a clear case of what is called a condition precedent. There can be no duty to pay until the architect is satisfied. But there can be a [317] contract before that moment, because the determination whether the promisor shall pay or not is no longer within his control. Hence the condition is subsequent to the existence of the obligation. ”

“ A technical synonym for obligation is chose in action or thing in action. A chose in action means, in our modern use of it, a proprietary right in personam; for example, a debt, a share in a joint-stock company, money in the public funds, or a claim for damages for a tort. A non-proprietary right in personam, such as that which arises from a contract to marry, or from the contract of marriage, is no more a chose in action in English law than it is an obligatio in Roman law. ”

“ The great motive for construing a promise to accept, as an acceptance, is, that it gives credit to the bill, and may induce a third person to take it. If the letter be not shown, its contents, whatever they may be, can give no credit to the bill; and if it be shown, an absolute promise to accept will give all the credit to the bill which a full confidence that it will be accepted can give it. A conditional promise becomes absolute when the condition is performed. ”

“ It may be said that when a man covenants that it shall rain to-morrow, or that A shall paint a picture, he only says, in a short form, I will pay if it does not rain, or if A does not paint a picture. But that is not necessarily so. A promise could easily be framed which would be broken by the happening of fair weather, or by A not painting. A promise, then, is simply an accepted assurance that a certain event or state of things shall come to pass. ”

“ To confirm this, we may subjoin some other reflections concerning that will, which is suppos'd to enter into a promise, and to cause its obligation. 'Tis evident, that the will alone is never suppos'd to cause the obligation, but must be express'd by words or signs, in order to impose a tye upon any man. The expression being once brought in as subservient to the will, soon becomes the principal part of the promise; nor will a man be less bound by his word, tho' he secretly give a different direction to his intention, and with-hold himself both from a resolution, and from willing an obligation. ”

“ The action of debt and the other actions of contract will furnish others. Debt throws most light upon the doctrine of consideration.
[253] Our law does not enforce every promise which a man may make. Promises made as ninety-nine promises out of a hundred are, by word of mouth or simple writing, are not binding unless there is a consideration for them. That is, as it is commonly explained, unless the promisee has either conferred a benefit on the promisor, or incurred a detriment, as the inducement to the promise. ”

“ It concerns the theory of contract. The consequences of a binding promise at common law are not affected by the degree of power which the promisor possesses over the promised event. If the promised event does not come to pass, the plaintiff's property is sold to satisfy the damages, within certain limits, which the promisee has suffered by the failure. The consequences are the same in kind whether the promise is that it shall rain, or that another man shall paint a picture, or that the promisor will deliver a bale of cotton. ”

“ A consideration in its widest sense is the reason, motive, or 314inducement, by which a man is moved to bind himself by an agreement. It is not for nothing that he consents to impose an obligation upon himself, or to abandon or transfer a right. It is in consideration of such and such a fact that he agrees to bear new burdens or to forego the benefits which the law already allows him. If he sells his house, the consideration of his agreement is the receipt or promise of the purchase money. ”

“ To acknowledge that any one promise may be void, is to acknowledge that if any other is binding, it is not merely because it is a promise. That circumstance then, whatever it be, on which the validity of a promise depends, that circumstance, I say, and not the promise itself must, it is plain, be the cause of the obligation which a promise is apt in general to carry with it. ”

“ Also the objective theory of contract has undermined the very citadel of the will theory. May we not refer these phenomena, not to the will of the person bound, but to another postulate of civilized society and its corollaries? May we not say that in civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith? If so, four corollaries will serve as the bases of four types of liability. ”

“ The duty of performing promises is thus shown to rest on universal law; and if, departing from this well-established principle, we now follow the teachers who instruct us that the obligation of a contract has its origin in the law of a particular State, and is in all cases what that law makes it, and no more, and no less, we shall probably find ourselves involved in inextricable difficulties. ”

“ WHEN PERFORMANCE OF CONDITIONS IS EXCUSED.—It is obvious that these conditions in promises may be sometimes used to defeat the ends of justice, and undoubtedly at times they are so used. A person who draws a contract cleverly will put in a great many conditions qualifying his own liability, and will try to make the promise on the other side as unconditional as possible. ”

“ That the substance of the declaration must be proved to warrant a verdict in favor of the plaintiff. 3. That the burden of proving a proposition or issue lies on the party holding the affirmative. 4. That the best evidence, of which the case in its nature is susceptible, must always be produced. [2]
Founded, as the action is, upon a policy of insurance, it becomes necessary, in order to understand the precise bearing of the rulings embraced in the exceptions, to examine the terms of the contract, and to refer to the exact issue tendered in the declaration. ”