Data, property, finance and security instruments · 04
Suretyship, guarantee and cession
Puts somebody else’s assets behind the obligation — and is void if the formalities are missed.
Puts somebody else’s assets behind the obligation — and is void if the formalities are missed.
For a suretyship, the identity of the surety, the creditor, the principal debtor and the nature and amount of the debt, in writing and signed by or on behalf of the surety — section 6 of the General Law Amendment Act 50 of 1956, without which it is void — plus renunciation of the benefits of excussion and division if that is intended. For a cession, the claim identified, whether it is out and out or in securitatem debiti, and notice to the debtor.
The formalities are absolute, and the most common defect is a suretyship signed without the principal debtor identified in the document itself. A guarantee, unlike a suretyship, can be an independent primary obligation — which of the two the parties intended changes everything about enforcement, and the heading on the page does not decide it.
The law it sits under
What governs this instrument.
Section 6 of the General Law Amendment Act 50 of 1956 requires a suretyship to be in writing and signed by or on behalf of the surety, and the terms of the obligation must appear from the document itself. The formalities are absolute: a suretyship that does not identify the principal debtor, the creditor and the nature of the principal obligation from within the four corners of the document is void, not merely voidable, and no amount of surrounding evidence saves it.
Related pages, tools and documents
Where this instrument sits in the wider set, and the engagement that produces it.
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