Personal Guarantees and Sureties between Commercial Law and Consumers in the United States

Publication Year:
2014
Usage 419
Downloads 403
Abstract Views 16
Repository URL:
https://dc.law.mc.edu/faculty-journals/111
Author(s):
Henkel, Christoph
Tags:
Commercial law; Guaranties; Suretyships; Third-party beneficiary contracts; Suretyship laws; Consumer protection; Comparative law; Commercial Law
article description
Guaranties and suretyships reduce the risk of default and today remain essential arrangements in many commercial and consumer transactions. A guarantor or surety promises to pay for the debt of a third party and may become primarily liable on that debt. Despite the significance of such a promise and the resulting obligation, U.S. law does not clearly distinguish between a guarantor and surety in a consumer or commercial context. This is of particular relevance, because in a consumer context a guaranty often has a gratuitous or sentimental element and a guarantor may not always be fully aware of the risks and liabilities involved with a guarantee promise. U.S. law generally considers guaranties and suretyships simply as third-party beneficiary contracts to which common law contract principles apply. This, in turn, makes guaranties and suretyships primarily a state law concern, resulting in significant differences of suretyship laws among all U.S. jurisdictions. As such, the U.S. lacks a uniform body of law in this area and makes consumer protection in a guaranty and suretyship context perfunctory at best.