Another difference between these two agreements lies in the exceptions and objections arising from the main agreement. In a contract of suretyship, the surety may exercise the principal debtor`s exceptions and objections to the creditor, while the guarantor of a security contract may not exercise the principal debtor`s exceptions and objections to the principal creditor. It is therefore important, when concluding a guarantee instrument, to ensure that the document is properly drafted and that all relevant agreements have been duly signed. Otherwise, a court may very well drop the guarantee, resulting in the loss of another debtor`s advantage. Certain criteria can be used to distinguish between these two types of agreements[viii]. The first criteria to be taken into consideration are the expressions used by the parties. Despite the fact that the statements of the parties are not sufficient to determine the nature of the agreement, it is obvious that these expressions are the starting point for determining the nature of the legal relationship. As already mentioned, there are considerable problems with the use of these two words instead of one another. This situation is mainly observed in translations of foreign languages into Turkish.
The English word „guarantee“ is translated into Turkish as „guarantee“ and „suretyship“. However, the nature of the agreement is not taken into account in the translation. Therefore, the expressions used by the parties are important in determining the nature of the agreement. However, the clarity of the parties` statements does not eliminate the need for interpretation. People should be careful to sign a guarantee, because you take responsibility for paying another`s debt. Once you have signed as a guarantor, it is very difficult to escape liability, as you did not know the warranty clause contained in the agreement. According to current case law, a signatory to an agreement is required to familiarize himself with the content of a document he has signed. This confirms the expression of Roman law subscriptor with the importance „Pay attention to the signatory“) but it applies to anyone who refuses a contract and not only to guarantees.
It is therefore important that, to protect yourself, you consult a lawyer before assuming responsibility for the debt of another. The main difference from these agreements is the formal requirement. Warranty contracts can only be concluded in compliance with important formal requirements, while the validity of a warranty contract does not require a particular form[vi]. In the past, we have been forced to draw our clients` attention to the fact that we would not be able to impose a guarantee instrument due to any problem related to the document. A few years ago, there was a reported case again concerning the conditions of a valid guarantee deed. This case is Astill v Lot 54 Falcon Park CC, which was tried in February 2012 before the High Court of Pietermaritzburg. At the end of the lease agreement to which the Astill guarantee was linked, two other contracts were concluded between L and M and a new guarantee was attached to both leases, A having resigned from his status as a member of the lessee shortly before the expiry of the lease to which his guarantee was annexed. L attempted to make Astill liable for rents and related costs that were not paid by M, the tenant. The first agreement was duly signed by the parties; However, the lease was only signed by Bamberger. The lease was accompanied by a deed of suretyship signed by Bamberger.
The deed of suretyship and lease agreements were attached to Dormell`s claim, as if that security were the instrument that obliged Bamberger, as guarantor and co-indebted, to fulfill Edulyn`s obligations. . . .