56-1-1      Guaranty defined.
56-1-2      Knowledge of principal unnecessary to creation of guaranty.
56-1-3      Consideration--When required.
56-1-4      Requirements as to writing--Signature of guarantor--Expression of consideration unnecessary.
56-1-5      Promise for consideration to answer for obligation of another--Writing unnecessary.
56-1-6      Obligation which renders the party making the promise the principal debtor, and the person in whose behalf it is made the surety--Writing unnecessary.
56-1-7      Promise for antecedent obligation of another--Writing unnecessary.
56-1-8      Undertaking by factor to sell merchandise and guarantee sale--Writing unnecessary.
56-1-9      Holder of instrument for the payment of money, upon which third person liable, transferring it in payment of precedent debt entering into a promise respecting such instrument--Writing unnecessary.
56-1-10      Acceptance of guaranty.
56-1-11      Guaranty of incomplete contract.
56-1-12      Guaranty that obligation is good or collectible.
56-1-13      Recovery upon guaranty that obligation is good or collectible.
56-1-14      Failure to take proceedings upon principal debt does not discharge guaranty of solvency.
56-1-15      Construction of guaranty--Unconditional in absence of terms importing condition precedent.
56-1-16      Liability of guarantor--Time of accrual--Default of principal--Demand or notice unnecessary.
56-1-17      Liability of guarantor of conditional obligation--Notice of default.
56-1-18      Obligations of guarantor--Scope and limitations.
56-1-19      Liability of guarantor--Contract of principal unlawful--Personal disability of principal.
56-1-20      Continuing guaranty defined.
56-1-21      Revocation of continuing guaranty--Exception.
56-1-22      Exoneration of guarantor--Alteration of original obligation of principal--Impairment of rights of creditors.
56-1-23      Void promises do not exonerate guarantor.
56-1-24      Liability of guarantor exonerated by agreement altering original obligation of debtor or impairing remedy of creditor not restored by rescission of such agreement.
56-1-25      Obligation of guarantor reduced by partial satisfaction of obligation.
56-1-26      Delay of creditors in enforcement of remedy--Guarantor not exonerated.
56-1-27      Liability of indemnified guarantor.
56-1-28      Discharge of principal by operation of law--Guarantor not exonerated.

56-1-1. Guaranty defined.

A guaranty is a promise to answer for the debt, default, or miscarriage of another person.

Source: SDC 1939, § 26.0101.

56-1-2. Knowledge of principal unnecessary to creation of guaranty.

A person may become guarantor even without the knowledge or consent of the principal.

Source: SDC 1939, § 26.0102.

56-1-3. Consideration--When required.

Where a guaranty is entered into at the same time with the original obligation or with the acceptance of the latter by the guarantee and forms, with that obligation, a part of the consideration to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation.

Source: SDC 1939, § 26.0103.

56-1-4. Requirements as to writing--Signature of guarantor--Expression of consideration unnecessary.

Except as prescribed by §§ 56-1-5 to 56-1-9, inclusive, a guaranty must be in writing and signed by the guarantor; but the writing need not express a consideration.

Source: SDC 1939, § 26.0104.

56-1-5. Promise for consideration to answer for obligation of another--Writing unnecessary.

A promise to answer for the obligation of another is deemed an original obligation of the promiser and need not be in writing where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise, or by one who has received a discharge from an obligation in whole or in part in consideration of such promise.

Source: SDC 1939, § 26.0105 (1).

56-1-6. Obligation which renders the party making the promise the principal debtor, and the person in whose behalf it is made the surety--Writing unnecessary.

A promise to answer for the obligation of another is deemed an original obligation of the promiser and need not be in writing where the creditor parts with value or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made his surety.

Source: SDC 1939, § 26.0105 (2).

56-1-7. Promise for antecedent obligation of another--Writing unnecessary.

A promise to answer for the obligation of another is deemed an original obligation of the promiser and need not be in writing where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor; or upon the consideration that a party receiving it releases the property of another from a levy or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promiser, whether moving from either party to the antecedent obligation, or from another person.

Source: SDC 1939, § 26.0105 (3).

56-1-8. Undertaking by factor to sell merchandise and guarantee sale--Writing unnecessary.

A promise to answer for the obligation of another is deemed an original obligation of the promiser and need not be in writing where a factor undertakes, for a commission, to sell merchandise and guarantee the sale.

Source: SDC 1939, § 26.0105 (4).

56-1-9. Holder of instrument for the payment of money, upon which third person liable, transferring it in payment of precedent debt entering into a promise respecting such instrument--Writing unnecessary.

A promise to answer for the obligation of another is deemed an original obligation of the promiser and need not be in writing where the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own or for a new consideration, and in connection with such transfer enters into a promise respecting such instrument.

Source: SDC 1939, § 26.0105 (5).

56-1-10. Acceptance of guaranty.

A mere offer to guarantee is not binding until notice of its acceptance is communicated by the guarantee to the guarantor, but an absolute guaranty is binding upon the guarantor without notice of acceptance.

Source: SDC 1939, § 26.0106.

56-1-11. Guaranty of incomplete contract.

In a guaranty of a contract, the terms of which are not then settled, it is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common in similar contracts at the place where the principal contract is to be performed.

Source: SDC 1939, § 26.0107.

56-1-12. Guaranty that obligation is good or collectible.

A guaranty to the effect that an obligation is good or is collectible imports that the debtor is solvent and that the demand is collectible by the usual legal proceedings, if taken with reasonable diligence.

Source: SDC 1939, § 26.0108.

56-1-13. Recovery upon guaranty that obligation is good or collectible.

In the cases mentioned in § 56-1-12, the removal of the principal from the state, leaving no property therein from which the obligation might be satisfied, is equivalent to the insolvency of the principal in its effect upon the rights and obligations of the guarantor.

Source: SDC 1939, § 26.0108.

56-1-14. Failure to take proceedings upon principal debt does not discharge guaranty of solvency.

A guaranty such as is mentioned in § 56-1-12 is not discharged by any omission to take proceedings upon the principal debt or upon any collateral security for its payment, if no part of the debt could have been collected thereby.

Source: SDC 1939, § 26.0108.

56-1-15. Construction of guaranty--Unconditional in absence of terms importing condition precedent.

A guaranty is to be deemed unconditional unless its terms import some condition precedent to the liability of the guarantor.

Source: SDC 1939, § 26.0109.

56-1-16. Liability of guarantor--Time of accrual--Default of principal--Demand or notice unnecessary.

A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal and without demand or notice.

Source: SDC 1939, § 26.0110.

56-1-17. Liability of guarantor of conditional obligation--Notice of default.

Where one guarantees a conditional obligation his liability is commensurate with that of the principal, and he is not entitled to notice of the default of the principal unless he is unable, by the exercise of reasonable diligence, to acquire information of such default, and the creditor has actual notice thereof.

Source: SDC 1939, § 26.0111.

56-1-18. Obligations of guarantor--Scope and limitations.

The obligation of a guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal, and if in its terms it exceeds it, it is reducible in proportion to the principal obligation.

Source: SDC 1939, § 26.0112.

56-1-19. Liability of guarantor--Contract of principal unlawful--Personal disability of principal.

A guarantor is not liable if the contract of the principal is unlawful, but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal.

Source: SDC 1939, § 26.0113.

56-1-20. Continuing guaranty defined.

A guaranty relating to a future liability of the principal, under successive transactions which either continue his liability or from time to time renew it after it has been satisfied, is called a continuing guaranty.

Source: SDC 1939, § 26.0114.

56-1-21. Revocation of continuing guaranty--Exception.

A continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions unless there is a continuing consideration as to such transactions which he does not renounce.

Source: SDC 1939, § 26.0115.

56-1-22. Exoneration of guarantor--Alteration of original obligation of principal--Impairment of rights of creditors.

A guarantor is exonerated except so far as he may be indemnified by the principal if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect or the remedies or rights of the creditor against the principal in respect thereto in any way impaired or suspended.

Source: SDC 1939, § 26.0116.

56-1-23. Void promises do not exonerate guarantor.

A promise by a creditor which for any cause is void or voidable by him at his option does not alter the obligation or suspend or impair the remedy within the meaning of § 56-1-22.

Source: SDC 1939, § 26.0117.

56-1-24. Liability of guarantor exonerated by agreement altering original obligation of debtor or impairing remedy of creditor not restored by rescission of such agreement.

The rescission of an agreement altering the original obligation of a debtor or impairing the remedy of a creditor does not restore the liability of a guarantor who has been exonerated by such agreement.

Source: SDC 1939, § 26.0118.

56-1-25. Obligation of guarantor reduced by partial satisfaction of obligation.

The acceptance by a creditor of anything in partial satisfaction of an obligation reduces the obligation of a guarantor thereof in the same measure as that of the principal, but does not otherwise affect it.

Source: SDC 1939, § 26.0119.

56-1-26. Delay of creditors in enforcement of remedy--Guarantor not exonerated.

Mere delay on the part of a creditor to proceed against the principal or to enforce any other remedy does not exonerate a guarantor.

Source: SDC 1939, § 26.0120.

56-1-27. Liability of indemnified guarantor.

A guarantor who has been indemnified by the principal is liable to the creditor to the extent of the indemnity notwithstanding that the creditor, without the assent of the guarantor, may have modified the contract or released the principal.

Source: SDC 1939, § 26.0121.

56-1-28. Discharge of principal by operation of law--Guarantor not exonerated.

A guarantor is not exonerated by the discharge of his principal by operation of law without the intervention or omission of the creditor.

Source: SDC 1939, § 26.0122.