Is a personal guaranty of commercial loan a legal contract?

Asked over 3 years ago - San Francisco, CA

Is it enforceable?

Additional information

It's signed after the loan is funded. According to business law, any contract needs consideration. For this case, the lender's promise is pre-existing and was performed. In other words, this is a post consideration.

Attorney answers (3)

  1. Bryant Keith Martin

    Contributor Level 18

    Answered . To lack consideration, the lender must have done nothing new for you in exchange for the guaranty. If the lender gave you nothing, why would you sign it?
    Typically, this arises when the primary obligation is in default. The lender agrees to forgo collection in consideration of the guaranty by an interested party, such as a shareholder of the debtor corp. Forbearance to collect is valid consideration for the formation of a contract.
    FEEDBACK: Both AVVO and other readers are interested in your feedback on the quality of the answers. Plz check the “thumbs up” symbol if you find an answer helpful or the “thumbs down” symbol if not.
    DISCLAIMER—This answer is for informational purposes only under the AVVO system, its terms and conditions. It is not intended as specific legal advice regarding your question. The answer could be different if all the facts were known. This answer does not establish an attorney client relationship. I am admitted only in California.
    (Bryant) Keith Martin
    sbbizlaw.com

  2. Frank Wei-Hong Chen

    Contributor Level 20

    Answered . Yes, a personal guaranty is enforceable. However, depending on the facts of your particular situation, there may be one or more legal defenses other than just failure of consideration. Typically, the litigation involves the waiver of defenses in the guarantee.

  3. Joseph Clark Melino

    Contributor Level 14

    Answered . There is another potential defense. The Guarantee is a guarantee of a personal obligation -- that is secured by collateral. In such a case, there may be no liability on the guarantee. One of the reasons the banks and insurance companies started demanding the owner of the collateral be an independent entity where the owners are shielded from business liabilities. At that point, the guarantees became enforceable against the members of the the business entity. Corporations, LP's & LLC's were of this nature.
    However, if the guarantor were a partner or sole proprietor, the guarantee was just a restatement of existing liability arising out of the ownership of the collateral.
    DISCLAIMER—This answer is for informational purposes only under the AVVO or LinkedIn systems and their respective terms and conditions. It discusses general legal principles, trends, and considerations and is not intended as specific legal advice regarding your question. This answer does not establish an attorney client relationship.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

22,829 answers this week

2,943 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

22,829 answers this week

2,943 attorneys answering