The monthly rent is outstanding according to the clarified payment status. A private guarantee is in your contract folder. You now want to write to the guarantor. Beforehand the matter requires its own examination: a guarantee is not a deposit account from which an internally calculated sum can simply be debited.
Reconstruct the existing obligation
§ 765 BGB describes standing surety for another’s liability. Therefore place the tenancy agreement and the complete guarantee side by side: who has promised whom, for which renting party, which claims, which period and, if applicable, which maximum amount? [B765]
Also check the form and effective creation. For the private guarantee considered here § 766 requires a written declaration of guarantee and excludes its electronic form; the provision also contains a rule curing defects upon performance. A loose electronic message should therefore not be treated without examination as if it were an appropriate original instrument. Statutory limits on demanded rental security and special agreements also belong to the validity check. [B766]
First clarify the secured principal claim
According to § 767 the respective status of the principal obligation is decisive. Subsequent legal transactions by the principal debtor’s side do not simply expand the guarantee. § 768 also governs possible defences of the guarantor arising from the principal obligation. [B767, B768]
As editorial preparation, therefore, outstanding rent items, actual receipts, purposes of application and disputed amounts should be set out in a comprehensible overview. A disputed subsequent claim should not be regarded as securely guaranteed merely by being entered in the rent account. Interest or costs likewise require an appropriate basis and a review of their extent.
Recognise the defence of prior enforcement
§ 771 in principle allows the guarantor to refuse payment as long as enforcement proceedings against the principal debtor have not been unsuccessfully attempted. This defence is something different from the assertion that the rent debt does not exist. [B771]
§ 773 names exclusions, in particular a waiver of the defence and the self-debtor guarantee. Other facts and the restriction of paragraph 2 must fit the concrete case. The simple statement that rent is missing does not yet prove a statutory exclusion. Conversely, it cannot be asserted across the board that enforcement must always be attempted first before any claim under a guarantee. [B773]
A separate comparison case
In two hypothetical tenancies there is in each case an unresolved payment arrear. In the first folder the guarantee contains no apparent waiver of the defence of prior enforcement. In the second there is a self-debtor obligation. You submit both instruments separately for review. A standard joint letter with identical reasoning could precisely overlook this decisive difference.
Even the second instrument does not automatically make the arrear correct or every ancillary claim secured. The defence of prior enforcement and defences relating to the principal claim remain distinct questions.
Keep the claim status together
If, after examination, a concrete recourse can be prepared, the instrument, the recorded principal claim and the demanded amount must match. If payments are received in the meantime, the status is updated before further steps. No party should continue to pursue an already resolved item from an outdated overview.
This article contains neither a guarantee template nor the approval of a particular clause. It helps you to check the existing security in its actual extent and to prepare a legally appropriate next step.