The use of personal guarantees to secure SME lending has been the subject of special focus by the Financial Services Royal Commission, especially where the guarantee is provided by an person not directly involved in the business (an ‘Outsider’) – typically a family member who does not receive any real benefit for providing the guarantee.
The Interim Report (available here) raises a number of specific questions around possible changes to the use of guarantees, which are reproduced at the bottom of this post. The main options are:
Better Information for guarantors
If there is concern that some guarantors are blindly taking a greater legal risk than they realise, then better information might be part of the solution. In theory, a document like a Product Disclosure Statement could help, but how likely is it to be read and genuinely understood? A more concrete step might be to make it mandatory for a guarantor to take independent legal advice.
If the concern is that guarantors underestimate a financial risk, then the Royal Commission might recommend that guarantors be given the same financial information that is used by the lender to make its decisions. But not all guarantors will have the skills and training to understand financial information – perhaps there will be a requirement for guarantors to also take independent financial advice?
The argument against such measures is that certificates of independent advice will add to costs, and may not change much in reality: as Commissioner Hayne has already highlighted, a parental desire to help family members can outweigh all other considerations.
Prohibiting enforcement of Outsider guarantees
A far more radical option would be to flatly prohibit the enforcement of guarantees given by Outsiders.
The key issue is whether or not lenders would reduce the availability of credit if Outsider guarantees were no longer enforceable, or whether they would continue to lend as they do now.
The argument that regulatory changes will not impact lenders’ willingness to provide credit was used to support the Code of Banking Practice prohibition against the use of financial covenants in SME lending. Lived experience shows that it was a wildly optimistic argument then, and it should be subject to more scrutiny now.
It is important to recognise that a blanket prohibition would not just be an issue for new lending. Unless there are grandfathering arrangements, it would apply to current loans as they expire, and so the potential impact could be massive if lenders decide that they cannot carefully and prudently extend credit to renew those loans.
Case by case?
The commission asks whether their might be circumstances that might justify the release of an Outsider’s guarantee – even if the lender had met the Code of Banking Practice standard of a ‘diligent and prudent banker.’
It might be simple to quickly answer that question with a ‘yes,’ but it is harder to identify examples of such situations and it will be more difficult to develop a new standard that will not impact the availability of SME finance.
Applicability to non-bank lenders
One of the questions that the Royal Commission will need to deal with is whether any new or higher standards should also be applied to non-bank lenders. If not, many borrowers denied finance by the application of a higher bank standard will turn to non-bank lenders, and take the same loan – but at a higher interest rate.
The Next Phase
The executive summary explains that the next round of public hearings will address the questions raised in the interim report.
The Interim Report of the Financial Services Royal Commission is available here.
7.2 Guarantees
- If established principles of judge-made law and statutory provisions about unconscionability would not relieve a guarantor of responsibility under a guarantee, and if, further, a bank’s voluntary undertaking to a potential guarantor to exercise the care and skill of a diligent and prudent banker has not been breached, are there circumstances in which the law should nevertheless hold that the guarantee may not be enforced?
- What would those circumstances be?
- Would they be defined by reference to what the lender did or did not do, by reference to what the guarantor was or was not told or by reference to some combination of factors of those kinds?
- Is there a reason to shift the boundaries of established principles, existing law and the industry code of conduct?
- If the guarantor is a volunteer, and if further, the guarantor is aware of the nature and extent of the obligations undertaken by executing the guarantee, is there some additional requirement that must be shown to have been met before the guarantee was given if it is to be an enforceable undertaking?
- Should lenders give potential guarantors more information about the borrower or the proposed loan? What information could be given with respect to a new business?
Discussion of how the Interim Report deals with Agricultural Lending is available here.
Australian Loan Restructuring Issues 