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Personal guarantees • directors • business debts

Personal Guarantee Debt Recovery

Where a director or other individual has guaranteed a company's debt, the creditor may have a separate route against the guarantor. The wording, scope, trigger, cap, notice provisions and any security should be checked before enforcement begins.

KEY ANSWER

The position in brief

A personal guarantee can make an individual personally liable for a company debt if the contractual trigger has occurred. The Insolvency Service describes a personal guarantee as a legally binding agreement under which a director may have to repay a company debt if the company fails to do so.

The guarantee must be read carefully. Liability may be capped, secured, unsecured or joint and several, and conditions such as demand or notice may affect when enforcement can begin.

Legal issues

Key issues include enforceability, scope, amount guaranteed, whether the underlying debt is due, compliance with demand or notice provisions, variation of the underlying facility, security, limitation and any defence available to the guarantor.

Company debt and personal liability are distinct. A director is not automatically liable merely because the company owes money.

Evidence that matters

Send the signed guarantee, underlying contract or facility, variations, statements, demands, notices, security documents, payment history and correspondence with the company and guarantor.

Reasonable lines of enquiry

Verify the executed guarantee and every document incorporated into it. Check the contractual trigger, any liability cap, continuing-guarantee wording, joint-and-several provisions, demand or notice requirements, later variations and whether the creditor has already recovered money from the company, another guarantor or security.

Before proceedings, consider the guarantor's apparent asset position and whether enforcement against the individual is commercially realistic.

What happens next

After reviewing the guarantee and underlying debt, the creditor may send a compliant demand to the guarantor and, if unpaid, issue civil proceedings. A judgment can then be enforced against personal assets using the appropriate method.

Immediate steps

Locate the complete guarantee and every later variation. Do not assume the guarantee covers all later borrowing or contractual changes without checking the wording.

What should you send us?

Send the guarantee, underlying agreement, statements, demands, variations, security documents and all relevant correspondence.

Legal information from Theodorous. The law and procedure can change and the application of the law depends on the facts. This guide is general information, not advice on your individual case.

HOW WE CAN HELP

What Theodorous can do

We can analyse the guarantee, underlying debt and trigger, draft the demand, issue proceedings where appropriate and advise on enforcement against the guarantor's assets.

NEXT STEP

Enforce a personal guarantee

Send the guarantee and underlying debt documents so we can assess liability, procedure and the practical recovery route.

Enforce a personal guarantee

FREQUENTLY ASKED QUESTIONS

Questions about this issue

Is a director automatically liable for company debts?

No. Company debts and directors' personal debts are separate. Personal liability may arise where the director has given a valid personal guarantee or another separate basis for liability exists.

Can a personal guarantee be secured against property?

Yes. The Insolvency Service notes that a guarantee may be secured by a charge against a specific asset, or unsecured.

Can more than one guarantor be liable for the full debt?

Potentially. A guarantee may be joint and several, depending on its wording.