Above the Law

ANSWER: Guarantee, the broader and more common term, is both a verb and a noun. The narrower term, guaranty, today appears mostly in banking and other financial contexts; it seldom appears in nonlegal writing.

Guarantee, vb. 1. To assure that a promise will be kept {the coach guaranteed that every boy on the team would play at least one inning}. 2. To agree to answer for another’s unpaid debt or other unfulfilled obligation {the father guaranteed his son’s car loan}. 3. To state with confidence {I guarantee that our client will be pleased with the settlement offer}.

Guarantee, n. The promise that an act will be carried out or a condition will be fulfilled {I will give you a written guarantee that the brief will be filed on time}.

Guaranty, n. The promise to pay the debt or fulfill the obligation of another if that person fails to do so {the father signed a guaranty for his son’s car loan}.

Guaranty formerly functioned also as a verb—a variant of guarantee—but that form is now obsolete. Guaranty should now be used only in its modern legal sense, as a noun.

Guarantor, n. 1. One who makes a guaranty {the father was the guarantor on his son’s loan}. 2. One who guarantees {the company prides itself as a guarantor of outstanding customer service}.

You may assume that if a guarantor is one who guarantees, then the person receiving that promise must be the guarantee, in the pattern of other such correlative pairs as lessorlessee and offerorofferee. And you’d be right. But historically, guarantee was also used as a synonym of guarantor, further muddying the waters surrounding this word. Conceivably, under those conditions, a guarantee [the person promising] could guarantee [promise] a product to the guarantee [person to whom the promise is made], who would then rely on that guarantee [the promise]. (Try enforcing that contract in court.)

The best way to avoid this sort of incomprehensible gibberish is to use guarantee in its noun sense to refer only to the promise made, never to the parties involved. And since this leaves guarantor without a passive correlative, instead call the parties by their names (Richards and Smith), which are always clear in the hands of a competent writer. Such -ee / -or pairs are too easily conflated anyway.

Sources:
Garner’s Dictionary of Legal Usage 399 (3d ed. 2011).
Black’s Law Dictionary 772-73 (9th ed. 2009).

Thanks to Mark D. Bogard for suggesting this topic.

Bryan A. Garner, President of LawProse Inc., is the most prolific CLE presenter in the U.S., having trained more than 150,000 lawyers and judges. His book — most prominently Black’s Law Dictionary and Garner’s Modern American Usage — have been cited as authority by every state and federal appellate court, including the highest. For more about him, go to www.lawprose.org. To follow him on Twitter: @bryanagarner.