A guarantor is a person who agrees to be responsible for the debt of another person.
Being a guarantor is a serious obligation. If the borrower fails to meet their payment commitments under a credit contract, the guarantor may be required to pay the debt, or the lender may be able to seize (“repossess”) and sell any property that the guarantor has put up as security for the debt (see “Repossession” in this chapter).
Lenders may insist on a guarantor if, for example, the borrower:
The guarantee must be in writing and must be signed by the guarantor.
A guarantee should generally include:
If you agree to be a guarantor for a borrower, the lender must give you the following information, before you give the guarantee:
The lender must also provide you with certain information if you make a written request for it – for example, the amount required for full payment at any date, or details of any changes made to the contract, or a copy of the contract. The lender has 15 working days to give you the information (or until 15 working days after you pay any reasonable fee charged by the lender, if this is later).
Sometimes guarantors agree to also guarantee any future debts that the borrower incurs with the lender. If the lender does then agree to lend the borrower more money to which the guarantee applies, the lender must inform the guarantor of this within five working days.
The lender must give you, the guarantor, full written details of any changes to the credit contract that either increase the borrower’s obligations or shorten the amount of time the borrower has to pay the debt. The lender must give you this information within five working days after the change.
If you as a guarantor have put up some of your property as security for the borrower’s debt, there’s a strict process the lender must follow if the borrower doesn’t make their payments and the lender wants to take your property (“repossess” it) to cover the debt. This includes first having to give you a “repossession warning notice” (see “Repossession” in this chapter).
If the lender repossesses property from the borrower (that is, either hire-purchase goods or property that the borrower has put up as security for a loan), you the guarantor must also be sent the same notices as are sent to the borrower.
The courts can change the terms of a credit contract if the contract is “oppressive”, which means “harsh, unjustly burdensome, unconscionable, or in breach of reasonable standards of commercial practice”. If the credit contract also requires a guarantee, the guarantee is treated as forming part of the credit contract, and so the guarantee can be changed too.
The judge can also change or strike out the terms of the guarantee if you were pressured into signing it by oppressive means, or if it would be harsh and oppressive to enforce the guarantee against you. (For information about challenging unfair contracts and guarantees, see “Challenging an unfair credit contract” in this chapter).
From June 2015, lenders have certain responsibilities towards you if you give a guarantee for a consumer credit contract – these are similar to the responsibilities owed to borrowers.
The central responsibility is that, before a lender takes a guarantee from you, and in all their later dealings with you in relation to the guarantee, the lender must exercise the care, diligence and skill of a responsible lender.
The lender also has these specific responsibilities:
If a lender breaches any of those responsibilities, the courts can order them to pay you compensation, or can make various other orders (see “Enforcing the credit contract laws against lenders” in this chapter).