- - Joint liability alone generally means the guarantors are liable together, and a creditor may need to involve all of them in the same claim.
- A joint and several guarantee shifts the risk of a co-guarantor's disappearance, insolvency, or evasiveness away from the creditor and onto the remaining guarantors.
- A guarantor who pays the creditor more than their proportionate share generally has a right of contribution against the co-guarantors who paid less or nothing.
When more than one person signs onto the same guarantee, the document usually says the guarantors are bound "jointly and severally." That phrase is doing a lot of legal work, and it surprises a lot of co-guarantors when a creditor comes after just one of them for the entire debt. Understanding a joint and several guarantee in Ontario before you sign — or before you rely on someone else to pay their "share" — can save real money and real conflict later.
This guide explains what joint and several liability actually means for guarantors, what happens if the creditor only pursues one of you, and what rights you have against a co-guarantor who ends up paying nothing.
What "Joint and Several" Actually Means
- Joint liability alone generally means the guarantors are liable together, and a creditor may need to involve all of them in the same claim.
- Several liability alone generally means each guarantor is liable only for a defined portion.
- Joint and several liability — the most common wording in personal guarantees — means the creditor can pursue any one guarantor, some of the guarantors, or all of them, for the full amount owed, in whatever combination the creditor chooses.
In practice, this means a creditor is not required to divide the claim evenly, or even to sue everyone at once. It can pursue whichever guarantor is easiest to collect from — often the one with the most identifiable assets or income.
Why Creditors Draft It This Way
A joint and several guarantee shifts the risk of a co-guarantor's disappearance, insolvency, or evasiveness away from the creditor and onto the remaining guarantors. From the creditor's perspective, it doesn't matter how the guarantors eventually sort out who pays what between themselves — the creditor's only concern is getting paid in full by someone.
What Happens If You Pay More Than Your "Share"
A guarantor who pays the creditor more than their proportionate share generally has a right of contribution against the co-guarantors who paid less or nothing. This is a separate claim that runs between the guarantors themselves, not against the original debtor — though a right to step into the creditor's position against the debtor may also be available, depending on the circumstances.
Contribution claims can get complicated when:
- One co-guarantor is judgment-proof, meaning they have no meaningful assets or income to collect from
- The guarantors' respective guarantee caps or terms differ, since a contribution claim is generally assessed against what each guarantor actually agreed to guarantee
- The guarantors never had a separate agreement between themselves about how to split the debt if it came due
Practical Comparison
| Scenario | What the Creditor Can Do | What Co-Guarantors Can Do Between Themselves |
|---|---|---|
| Two guarantors, both solvent | Sue either one, or both, for the full amount | The one who pays can seek contribution from the other |
| One guarantor disappears or becomes insolvent | Pursue the remaining guarantor for the full amount regardless | The remaining guarantor's contribution claim against the missing guarantor may be worth little in practice |
| Guarantors have a private cost-sharing agreement between themselves | Not affected — the creditor isn't bound by a side agreement it didn't sign | Enforceable between the guarantors, but doesn't limit what the creditor can demand from either of them |
Reducing Your Exposure as a Co-Guarantor
- [ ] Read the guarantee carefully for the words "jointly and severally" versus "severally" or a stated percentage
- [ ] Consider negotiating a cap on your individual exposure before signing, rather than an open-ended joint and several commitment
- [ ] Put any cost-sharing understanding with co-guarantors into a separate written agreement
- [ ] Keep records of any payments you make toward the guaranteed debt, since they support a later contribution claim
- [ ] Get advice before assuming a co-guarantor's promise to "cover their share" protects you from the creditor
Frequently asked questions
Can a creditor really sue just one guarantor and leave the others alone?
Yes. Under a standard joint and several guarantee, the creditor can choose to pursue any one guarantor for the entire debt, and is not required to divide the claim among everyone who signed.
If I pay the full debt, can I get money back from my co-guarantors?
Generally yes, through a right of contribution, though actually collecting from a co-guarantor who is unwilling or unable to pay is a separate practical challenge from having the legal right to claim it.
Does it matter if only one of us actually benefited from the loan?
Not for the creditor's purposes — a joint and several guarantee generally lets the creditor collect from any guarantor regardless of who benefited. Who ultimately bears the cost is a question for the guarantors to sort out between themselves, including through a contribution claim.
Is a joint and several guarantee different from a joint and several loan?
Yes. This guide addresses guarantees given for someone else's debt. A joint and several loan or lease, where the signers are themselves the borrowers, raises similar sharing issues but is a different legal relationship.
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