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Is a personal guaranty of commercial loan a legal contract?

San Francisco, CA |

Is it enforceable?

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

Posted

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.
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(Bryant) Keith Martin
sbbizlaw.com

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Posted

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.

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Posted

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.

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