A personal guaranty is a common requirement by a credit
professional to reduce credit risk with a sale to a corporate debtor.
A party, usually a principal of the company purchasing the goods (the
guarantor), states to the vendor that if the vendor will sell the corporate
debtor on credit, the guarantor will guarantee the payment. This promise
to pay by the guarantor is an inducement for the vendor to sell the
debtor on open account and the guaranty creates a contract of secondary
A personal guaranty often is perceived by the credit professional to have questionable
collectability. However, the personal guaranty may assure payment on the open
account where a debtor is in financial straits and is unable to pay all vendors.
The personal guarantor will likely direct the corporation to repay those debts
that are not personally guarantied to remain unpaid, to avoid personal lawsuits
for collection of the personally- guaranteed debt.
A credit executive must take certain steps to ensure he or she has a valid
guaranty to avoid unnecessary legal attacks by the guarantor. A recent case
from the Court of Appeals for the state of Georgia[ii] illustrates where a
form guaranty was sufficiently ambiguous to open the door for the personal
guarantor to challenge whether the vendor held a valid guaranty.
A Guaranty From The President?
In Dewberry, an individual who was the president of a
company, guaranteed the company's open accounts with the vendor. The
individual signed the guaranty and added the title "President" after
his signature. The president's company name was typed in above the
individual's signature line. The printed words "personal guarantee" were
crossed out from the credit application. The guaranty form referred
to the guarantor only as the "undersigned":
"In consideration of your extending credit to the [vendor] and in consideration
of the receipt of certain materials by said firm, we the undersigned do hereby
jointly and severally guarantee the payment by said firm."
The debtor company defaulted on the open account. The vendor sued the individual
in his personal capacity on the guaranty. The vendor filed a motion for summary
judgment, looking to hold the guarantor liable without going to trial on the
lawsuit. The guarantor asserted he had not personally obligated himself to
the agreement as he had signed the guaranty in a representative capacity (as
president for the related company).
The court framed the issue as whether a person using a representative title
(for example, president) prevents a signer from becoming personally bound under
Principles of Contract Control
In Dewberry, the guaranty did not name the individual
guarantor. The guaranty stated that the party signing was to be personally
bound, but the preprinted words were crossed out. The general rule
is that when the signer's identity is otherwise clear from the face
of the contract, the title appearing after the signature is merely
a personal descriptor, and does not prevent personal liability from
attaching. However, the individual guarantor typed in the debtor company
name above the signature line and typed in "President" below the signature
The court found that guarantor did not sign the guarantee in a personal capacity
and was not personally obligated for purposes of the summary judgment ruling.
The court of appeals reversed the trial court. The court noted that the vendor
may be able to establish personal liability of the guarantor, however, that
must wait until trial.
Is Your Guaranty Complete?
As credit executives are well aware, a guarantor will
always attempt to find ways to challenge the validity of his or her
guaranty. The Dewberry court case reminds credit executives that the
guarantor is not a party to the principal debt. The guarantor's undertaking
is independent of the debtor's promise to pay. Merely because both
contracts are on the same paper -- the debtor's promise to pay for
the vendor's goods or services, and the guarantor's promise to pay
if the debtor does not -- does not change the independence of the agreements.
Using a form guaranty that fails to identify the guarantor and the capacity
that the guarantor is signing may open the door for needless legal challenge
by the guarantor, which adds to the delay and expense for the vendor. The guaranty
should include a statement that the signing party is personally guarantying
the debtor of the enterprise referenced in the credit application. The guaranty
should have under the signature block a line for the individual guarantor's
social security number and a line for the individual guarantor's home address.
The guarantee should be signed before a notary to reduce the risk that guarantor
may contend that the guarantee was forged.
Scott Blakeley is a principal
of Blakeley & Blakeley
1. Dewberry Painting Centers, Inc. v. Duron, Inc., 235 Ga.App. 40