Halsbury's Laws of Canada – Guarantee and Indemnity (2018 Reissue)
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Guarantees are among the most common forms of security in use in commercial transactions, and vast sums of money are lent every year on the strength of guarantees. This title offers a detailed discussion of the law of guarantee, and also deals with similar forms of indemnity and related obligations.
Topics covered in this essential reference include:
- Creation of a guarantee
- Separate legal persons
- Capacity of the parties
- Intention to enter into a guarantee
- Guarantees as executory contracts
- Certainty of terms
- Illegality and public policy
- Offer and acceptance
- Subject to contract
- Discharge of a guarantee
- Appropriation of payments
- Fulfillment of purpose of guarantee
- Effect of rights of set-off
- Accord and satisfaction
- Departure from the guarantee - the principle of strict adherence
- Bankruptcy of a surety
- Guarantees of proposals in a bankruptcy
- Consumer protection legislation
- Defence by counterclaim
- Discharge by dissolution of the creditor
- Surety's rights as against the principal
- Right to indemnification
- Indemnification of surety - commercial bonding
- Compromise of claim on the surety
- Procedural considerations
- Bankruptcy of principal
Table of contents
1. Definition of the Term "Guarantee"
2. The Subject of Guarantees
3. Guarantees as Contractual Undertakings
II. Basic Principles
1. Guarantees and the Law of Contract
2. Creation of a Guarantee
3. Formalities of a Guarantee Contract
4. Interpretation of the Guarantee Contract
5. The Parol Evidence Rule
III. Assessing the Liability of the Surety
1. Liability under a Guarantee
2. Liability under Surety Bonds
3. Non-Guarantee Indemnities
4. Liability under Near Guarantees
1. Vitiating Factors
2. Discharge of a Guarantee
3. Other Defences to a Guarantee Action
4. Discharge of the Surety
5. Rescission and Repudiation
6. Faint Hope Defences
7. Contractual Waivers of Defence
V. The Rights of a Surety
1. As Against the Creditor
2. Surety's Rights as Against the Principal
3. Rights of a Surety Against Co-Sureties
4. Waiver of Rights
VI. Procedural Issues
1. Summary Judgment
2. Res Judicata and the Binding Effect of Judgments as Against the Principal
3. Evidence of Amount Owing
5. Guarantees Involving a Foreign Party
6. Enforcement of the Guarantee
7. Disclaimer of Contract in Bankruptcy or under CCAA
8. Want of Prosecution
9. Mitigation of Damages
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