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Contractual and statutory requirements
A contract of suretyship, like any other contract governed by English law, must be formed by offer and acceptance with the intention of creating legal relations, and must be supported by consideration unless it is entered into by deed. 1 Consideration may be express or implied. If the act alleged to constitute consideration has taken place before and independently of the giving of the promise it is said to amount to ‘ past consideration ’; and is not valid consideration. 2 The consideration for the issuance of a refund guarantee is often expressed to be the buyer’s agreement to enter into the shipbuilding contract and/or to make advance payment of instalments. 3 The shipbuilding contract will often be concluded several days or weeks prior to the provision of the refund guarantee(s). The question arises, therefore, as to whether consideration in this sense is adequate consideration for the purposes of the guarantee.
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