"until there is a principal debtor, there can be no suretyship. Nor can a man guarantee anyone else?s debt unless there is a debt of some other person to be guaranteed.?-- Lord Selborne. In tandem with Lord Selbourne, Lord Willes also said that ?(or) if his liability is made the foundation of a contract between the plaintiff and defendant, and that liability fails, the promise is void." The law of contract gives you, as foundation, that a person was taken to be liable, and that the surety-ship was a surety-ship in respect of that liability. Take away that liability, the foundation of the principal contract the contract of surety-ship would fail.?
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In every contract of guarantee the guiding principle is that ?the liability of surety is co-extensive with that of the principal debtor? because ?such contract is an undertaking to the creditor that the principal debtor will perform his principal obligations? and if he fails the surety will perform the obligations.
This means that as a general rule, the surety?s liability is no greater and no less than that of the principal, in terms of amount, time of payment and the conditions under which the principal is liable.
However, it is to be noted that that above principle is not immutable. The parties are free in certain respects to have limitations on the surety?s liability.
Therefore, the entire focus of this paper is about the most important question of law as given below.
whether a surety is liable notwithstanding that the principal debtor, who was a minor, may not be liable on the main contract with the creditor?
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