Can a guarantor be held liable even if the guarantor's obligations are co-extensive with those of the principal debtor?

Alberta, Canada


The following excerpt is from Herron v. Cardston Credit Union Ltd., 1984 ABCA 223 (CanLII):

Laycraft, J.A. in Canada Permanent v. King Act et al (Unreported. June 20, 1984) said at page 24: “Prima facie a guarantor’s obligations are co-extensive with those of the principal debtor but the starting point must always be to analyze the nature of the guarantor’s undertaking. Depending upon the terms of the guarantor’s contract with the creditor, his obligation may persist even though the creditor is temporarily or even permanently disabled from pursuing the debtor to collect the debt. It is also important to an analysis of the problem to remember that though the obligations of surety and principal debtor are often co-extensive they are, nevertheless, separate and distinct obligations.” He goes on at page 25: “Though co-extensiveness of the obligations of the debtor and the surety may be varied by the surety’s contract with the creditor, I have difficulty in envisioning the contractual term which would hold a surety liable when the debt guaranteed has been paid. The essence of suretyship contracts is that the surety is to see that the obligations between creditor and debtor are satisfied.”

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