Is the obligation to 'procure' a third party performs an act the same as 'ensure' the third party performs? A customer has issued a revised tender amending terms from 'procure' to 'use all reasonable endeavours to procure' and there has been internal discussions regarding the extent to which the original obligation has been altered.
Free Practical Law trial. To access this resource, sign up for a free trial of Practical Law. Free trial. Already registered? Sign in to your account. The company may think that its only obligation is to help arrange for the third party to satisfy the specified liability on its own behalf.
However, if the promise is construed as a guarantee, the company may in fact be required to satisfy the liability itself if the third party is unable to do so. The situation may be further aggravated by the fact that the company is unlikely to have the contractual protections that it would normally seek when giving a guarantee e. In particular: Under the Statute of Frauds , a guarantee will be unenforceable unless it is in writing and signed by the guarantor.
When dealing with a small company group, it may not be uncommon for a representative of the head company to promise verbally to back up the obligations of its subsidiaries. A verbal promise is difficult to enforce at the best of times, but it will be even more difficult if the promise is construed as a guarantee and, therefore, falls foul of the Statute of Frauds.
For example, board or shareholder approval may be required for the company to give a guarantee. If the proper approval has not been obtained, then the company may be able to set aside the guarantee though usually it will only be able to do so where the counterparty has acted in bad faith. In this case, if the company has inadvertently breached the covenant by giving a guarantee, the financier may claim that the company is in default and demand early repayment of the loan.
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