_Institutes of Holland_, p. 120); the French and Belgian Codes, moreover, provide that suretyship is not to be presumed but must always be expressed (art. 2015). The Statute of Frauds does not invalidate a verbal guarantee, but renders it unenforceable by action. It may therefore be available in support of a defence to an action, and money paid under it cannot be recovered. An indemnity is not a guarantee within the statute, unless it contemplates the primary liability of a third person. It need not, therefore, be in writing when it is a mere promise to become liable for a debt, whenever the person to whom the promise is made should become liable (_Wildes_ v. _Dudlow_, L.R. 19 Eq. 198; _per_ Vaughan Williams, L.J. in _Harburg India-Rubber Co._ v. _Martin_, 1902, 1 K.B. p. 786; _Guild_ v. _Conrad_, 1894, 2 Q.B. 885 C.A.). Neither does the statute apply to the promise of a _del credere_ agent, which binds him, in consideration of the higher commission he receives, to make no sales on behalf of his principal except to persons who are absolutely solvent, and renders him liable for any loss that may result from the non-fulfilment of his promise. A promise to _give_ a guarantee is, however, within the statute, though not one to _procure_ a guarantee. The general principles which determine what are guarantees within the Statute of Frauds, as deduced from a multitude of decided cases, are briefly as follows: (1) the primary liability of a third person must exist or be contemplated as the foundation of the contract (_Birkmyr_ v. _Darnell_, 1 Sm. L.C. 11th ed. p. 299; _Mountstephen_ v. _Lakeman_, L.R. 7 Q.B. 196; L.R. 7 H.L. 17); (2) the promise must be made to the creditor; (3) there must be an absence of all liability on the part of the surety independently of his express promise of guarantee; (4) the main object of the transaction between the parties to the guarantee must be the fulfilment of a third party's obligation (see _Harburg India-rubber Comb Co._ v. _Martin_, 1902, 1 K.B. 778, 786); and (5) the contract entered into must not amount to a sale by the creditor to the promiser of a security for a debt or of the debt itself (see de Colyar's _Law of Guarantees and of Principal and Surety_, 3rd ed. pp. 65-161, where these principles are discussed in detail by the light of decided cases there cited).