Last Updated February 27, 2024
What is a guarantee?
A guarantee is a written contract in which a guarantor agrees to accept responsibility for the debts or obligations of a debtor (also known as a borrower). A guarantor can be either an individual or a company.
If the debtor defaults, the guarantor must satisfy the debt or fulfil obligations to the third party (usually a creditor, lender, or landlord). A guarantee adds protection and security for the third party that provides the loan or enters into an agreement with the debtor.
What are the different types of guarantees?
You can use our template to create either a Personal Guarantee (where the guarantor is an individual) or a Corporate Guarantee (where the guarantor is a corporation). You can make both types into a limited guarantee, in which the guarantor determines the amount they pay if the debtor defaults.
Personal Guarantee
Personal guarantees suit situations where the debtor has poor or no credit. For instance, someone’s parents may sign a Personal Guarantee to help their son or daughter secure a home loan.
A company director may also use a Personal Guarantee when seeking funding for their business. Depending on the company’s structure, a director may not be liable for the business’s debts or liabilities. However, by signing a guarantee, the director bypasses their limited liability and takes personal responsibility for the debt.
Corporate Guarantee
Corporate guarantees suit business development situations where a company takes out a significant loan from a bank or money lender. A small business that needs capital might also strike a deal with a larger company to be the corporate guarantor on a loan.
Limited Guarantee
A limited guarantee lowers the guarantor’s risk by limiting their liability to a predetermined amount. This way, if the debtor defaults, the guarantor only has to pay the amount outlined in the Personal or Corporate Guarantee.
If the lender is a financial institution, it may have a formula for calculating a limited guarantee. Otherwise, use your best judgement when determining the amount a guarantor should be responsible for in the event of a default.
How long is a Personal Guarantee legally binding?
LawDepot’s Personal and Corporate Guarantee template includes a term that makes this guarantee enforceable for as long as the debtor owes a debt to the lender. As long as there’s a debt owed, the guarantor has an obligation to pay the debt if the debtor cannot.
For instance, if the guarantee is for a Loan Agreement, the guarantor is bound until the debtor repays the loan or the lender releases the guarantor from liability with a Debt Settlement.
What happens if you default on a Personal Guarantee?
If the debtor defaults on their loan (or fails to meet contractual obligations), the lender will likely seize the collateral or security deposit that the debtor used to secure the deal. The guarantor then becomes responsible for paying the remainder of the debt. They may also be responsible for late fees and interest if the debtor consistently missed their payment due dates.
Typically, a guarantor is someone with a stable income and an excellent credit history. Ideally, the guarantor should have no problems paying back what’s owed to the lender if the debtor defaults. Unfortunately, the debtor’s default will likely negatively impact the guarantor’s credit score, which may also affect the guarantor’s ability to secure future loans.
If the guarantor fails to fulfil their promise, the lender may take legal action against them by suing the guarantor and making a claim against their assets. As such, LawDepot’s Personal and Corporate Guarantee template includes a clause stating that the guarantor cannot sell or otherwise transfer ownership of their assets without the lender’s written consent.
Do I need a witness for my Personal Guarantee?
Yes, either a notary public or a witness should sign your document.
Depending on your jurisdiction, notarization may or may not be a requirement. Regardless, signing the document in the presence of a notary public helps reinforce the validity of the agreement. Some banks and institutions have certain signing requirements and may refuse a document that’s not properly witnessed. Notarizing your document often helps avoid bureaucratic hold-ups.
Jurisdictions that don’t require notarization may allow a neutral third party to witness the agreement. A witness can be any adult who doesn’t benefit from the guarantee or loan in any way.