Also known as: suretyship provisions · surety provision · suretyship clause
Written by attorneys · grounded in primary & secondary sources — see below
A statutory provision within the statute of frauds that renders unenforceable any contract in which one party promises to answer for the duty of another unless the promise is evidenced by a signed writing.
CareWay's purchasing director told Apex that if NovaGene could not pay for the production run, CareWay would cover any unpaid invoices. Apex completed the run relying on the statement, but NovaGene defaulted and no writing recorded the assurance. Apex sued CareWay to recover the invoices. The court held the promise unenforceable because it was a secondary obligation to answer for NovaGene's duty.
Caterpillar orally assured Rosewood Care Center that it would cover the nursing home expenses of an employee if the employee's family could not pay. Rosewood provided care in reliance on the assurance, but the family defaulted and no writing existed. Rosewood sued Caterpillar for the unpaid charges. The court determined that the promise fell within the suretyship provision and required a signed writing to be enforceable.
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A promise is subject to the provision when one party undertakes to answer for the duty of another, creating a secondary or collateral obligation rather than a primary one. Courts examine whether the promisor is stepping in only if the principal debtor defaults and whether invoices or obligations remain directed at the original party.
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The main-purpose exception applies when the promisor's primary objective is to secure a direct economic benefit for itself rather than to guarantee another's debt. Courts look to the promisor's stake in the transaction, such as commissions or integrated business operations, to decide whether the promise is treated as original and therefore outside the statute.
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Reliance alone does not remove the promise from the statute of frauds. The suretyship provision requires a signed writing by the party to be charged regardless of performance or reliance by the creditor, unless a recognized exception such as the main-purpose rule independently applies.
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The suretyship provision covers promises to answer for the duty of any living third party, while the executor-administrator provision specifically addresses an executor's personal promise to pay a debt of the decedent. Both require a writing, but the executor provision focuses on fiduciary capacity and pre-death obligations.
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