Q: Can you help us word the suretyship document so that it covers us without raising his suspicions?

I am the Financial Director of a company. We sell tools, equipment and material to the building industry. A customer wants to order R80k worth of building materials from one of our stores on credit – and because we’ve found him to be an erratic payer we’ve asked him to sign a suretyship to secure payment, which he’s agreed to. His building company also happens to owe another one of our stores an amount of R500k for equipment that he purchased six months ago, which they’ve been battling to get him to pay. Because our stores trade under different names he doesn’t know that we’re all part of one company. This is a great opportunity for us to get him to sign a suretyship to us – and then once he’s signed it we’ll use it against him for the payment of the R500k. Can you help us word the suretyship document so that it covers us without raising his suspicions?        

Law Quest

A:

Getting your customer to sign a suretyship for the R80k for building materials should be a relatively simple matter, seeing as he’s already agreed to this. However, regardless how the suretyship has been worded, you would find it very difficult to use this guarantee against him for the R500k equipment debt with your other store. When interpreting and applying the suretyship the court will look at:

  • the wording of the suretyship;
  • the title of the suretyship; and
  • the original reason for and intention behind the suretyship.

 

You cannot “trick” a client into signing suretyship to cover one debt and then use the suretyship against them for payment of a completely different and unrelated debt, specifically if the surety’s original intention behind the suretyship didn’t extend to this other debt.

 

You can use this opportunity to openly discuss the equipment debt with your customer, for example, “Yes, you can have the R80k building materials on credit, but only if you sign a suretyship that covers both the R80k materials and the R500k equipment debt owing to our other store.” If the customer agrees to this, and of his own free will he signs the suretyship intending it to cover both debts, then you’d be in a far stronger position if you decide to use the suretyship in legal action to recoup the debt.

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