Lloyd's Maritime and Commercial Law Quarterly
GUARANTEES UNDERTAKEN WITHOUTTHE REQUEST OF THE DEBTOR
The Zuhal K and Selin
Owen v. Tate
1 is authority that a guarantor who has been required to honour a guarantee is nonetheless not entitled to be indemnified by the principal debtor if the guarantee was voluntarily given without the debtor’s request.2 However, two of the Lords Justices in the case (Scarman and Stephenson, L.JJ.) opined that, in the right circumstances, a right to be indemnified might arise even though no request for the guarantee had been made by the debtor. Scarman, L.J., stated:3 [The] fundamental question is whether in the circumstances it was reasonably necessary in
1. [1976] Q.B. 402.
2. A similar position obtains in the United States: see G. Palmer, The Law of Restitution (1978), Vol.
2, 363–366 and the academic criticism of the cases cited therein. For earlier English cases consistent with Owen v. Tate, see P. B. H Birks and J. Beatson. “Unrequested Payment of Another’s Debt” (1976) 92 L.Q.R. 188, 202 n. 85.
3. Supra, fn. 1, at pp. 409–410.
07