Piggy bank with glasses

What is a guarantee and indemnity?

When approaching a lender for finance, they may request a guarantee be provided as security alongside the loan documents. A guarantee is a separate promise to the lender stating if the borrower doesn’t meet their obligations under the loan, you as guarantor will fulfil them.

Lenders require you to see a lawyer before you sign a guarantee. This is because when they go wrong, they can go really wrong, and (before you sign up to a guarantee) you need to have a good understanding on the risk involved and your rights and obligations under the guarantee.

A ‘bank’ guarantee can take various different forms such as:

  • A couple guaranteeing their family trust’s borrowings
  • Parents guaranteeing their child’s borrowings
  • A person guaranteeing their company’s borrowings

There are other forms of guarantees which we do not discuss here, such as providing a guarantee under a lease or an agreement for sale and purchase

What you should know about guarantees

What is an indemnity?

Often called a “Guarantee and Indemnity”, an indemnity is actually a separate obligation to a guarantee. A guarantee relates to the debt or default of the person who is primarily responsible for the loan (the borrower) while the guarantor has the secondary obligation. An indemnity is a contract by one party, to prevent the other party against loss. An indemnity creates a primary obligation from the guarantor to the lender. Meaning an indemnity can be enforceable, even when the guarantee may not be.

Limited vs Unlimited

A guarantee can be unlimited, meaning any debt created by the borrower will be captured, or the guarantee can be limited to a specified amount. This limits your exposure under a guarantee as you would only be liable to the extent of the guaranteed amount. Lenders lean toward unlimited guarantees as this is a better credit position for them.

All Obligations

Under an “all obligations” guarantee you are liable for any current and future debts the borrower owes to the lender. Do you know every debt the company, trust or child you are guaranteeing has, or may get in the future? If not, you may be signing up for debt you are not aware of.  If you are the sole director and shareholder of your company, you likely have a fair idea of the company’s financial situation. However, if you are guaranteeing your child to help them into a house, you may not have the full picture of debts they have (such as credit cards or car loans).  It is important to have clear communication and transparency between parties.  You can also consider asking for financial information or accounts to give you additional comfort, if available.

Joint and Several

If you are not the sole guarantor, the lender will often include wording that the guarantors are “jointly and severally liable”. This reserves the lender’s right to seek payment from any person on foot under the guarantee (to the exclusion of the others). In the event that one has more valuable assets and a higher prospect of meeting the guarantee liability were it called up, then they could pursue that person singularly.

If you are looking at entering into any sort of guarantee (including those not discussed above, such as a guarantee in a Deed of Lease for example), we recommend you touch base with our property law team who will assess your particular circumstances and give tailored advice about any risk and your rights and obligations in respect of the proposed guarantee.