## Personal guarantees in South Dakota **Personal guarantees** are promises by individuals to pay a business's debts if the business cannot. South Dakota business owners face significant personal exposure when signing — defeating much of the purpose of forming an LLC or corporation. ## When personal guarantees required **Common scenarios:** **Business loans:** - SBA loans - Bank business loans - Equipment financing - Lines of credit - Credit cards **Real-estate leases:** - Commercial leases - Office space - Retail space - Specific terms - Often required **Equipment leases:** - Vehicles - Office equipment - Specific equipment leases - Often required **Vendor accounts:** - Trade credit - Specific vendor agreements - Some vendors require - Specific to industry **Performance contracts:** - Subcontractor agreements - Service contracts - Specific industry ## Why guarantees defeat LLC / corporate protection **Normal corporate protection:** - Business is separate entity - Personal assets shielded from business debts - Limited liability - Major reason for incorporating **Guarantee effect:** - Personal liability added back - Direct contract with creditor - Personal assets at risk - Defeats limited liability - Specific to that obligation ## Types of personal guarantees **Limited (less common):** **Limited dollar amount:** - Specific cap on liability - E.g., $100K on $500K loan - Reduces exposure **Limited time period:** - Specific term - E.g., first 2 years - Reduces long-term exposure **Limited scope:** - Specific obligations only - E.g., principal only, not interest - Reduces specific exposure **Burn-off provisions:** - Reduces over time - Performance milestones - Specific events trigger **Unlimited (most common):** - Full amount of obligation - All future modifications - All extensions / renewals - Complete personal liability ## Joint + several liability **Multiple guarantors:** - Each liable for full amount - Creditor chooses who to sue - Often spouse + business partners - Specific contribution rights among guarantors - One pays = right to recover from others **Strategic:** - Don't all sign if avoidable - Sometimes only one needs to sign - Spouse signing dramatically increases exposure - Specific to circumstances ## Spousal guarantees **Common requirement:** - Both spouses sign - Especially residential property as collateral - Spouse becomes equally liable - Marital assets at risk **Equal Credit Opportunity Act (ECOA):** - Creditor cannot require non-co-applicant spouse signature - Specific exceptions - Limited but real protection - ${s.name}-specific community property issues ## Confession of judgment **Particularly dangerous:** - Pre-signed admission of liability - Permits judgment without trial - Specific procedures - Used in commercial contexts - Banned in many states for consumers - ${s.name}-specific enforceability ## Negotiating personal guarantees **Often more negotiable than realized:** **Lender / landlord motivation:** - Want to close deal - Established business has leverage - Strong financial position - Multiple options offered - Specific industry conventions **Negotiation points:** **Limit amount:** - Cap personal liability - Specific to dollars - Often negotiable **Limit time:** - Initial period only (e.g., 2 years) - Burn-off provisions - Performance milestones **Spouse exclusion:** - Don't include spouse if avoidable - ECOA protections - Specific circumstances **Subordination:** - Other lenders' guarantees first - Specific procedures **Limit scope:** - Specific obligations only - Not future modifications - Not extensions / renewals **Continuing guarantor (avoid):** - Open-ended future obligations - Highly dangerous - Try to specify limited ## Defenses to personal guarantees **Common defenses:** **1. Contract formation issues:** - Failure of consideration - Specific defenses - Lack of capacity - Misrepresentation **2. Statute of frauds:** - Generally requires writing - Specific provisions - ${s.name}-specific rules **3. Modification:** - Material modification of underlying - Without guarantor consent - May discharge guarantee - Specific to language **4. Release of collateral:** - Creditor releases collateral - May discharge guarantee - Specific to amount + value **5. Failure to mitigate:** - Creditor's duty to mitigate - Specific to circumstances - Limited applicability **6. UCC defenses:** - Specific UCC Article 9 procedures - Failure to follow - Notice issues - Disposition issues **7. Statute of limitations:** - Specific to ${s.name} - Different from underlying obligation sometimes - Specific accrual rules **8. Unconscionability:** - Procedural + substantive - High bar - Limited applicability - Adhesion contract issues ## Bankruptcy + guarantees **Personal guarantor's bankruptcy:** - Chapter 7 may discharge - Chapter 13 manages payments - Specific to debt type - Some debts non-dischargeable **Business bankruptcy:** - Doesn't affect personal guarantee - Lender can still pursue guarantor - Specific procedures - Significant exposure remains **Specific provisions:** - Reaffirmation issues - Specific to creditor - Specific to debt type - Bankruptcy court approval ## Enforcement **Once business defaults:** **Demand on guarantor:** - Specific notice procedures - Sometimes required by contract - Sometimes automatic - Specific timing **Litigation:** - Lawsuit against guarantor - Often quick (confession of judgment) - Standard collection procedures - Specific defenses asserted **Collection:** - Wage garnishment (limited) - Bank account levies - Property liens - Asset seizure - Long-term enforcement ## Practical considerations **Before signing:** - Read every word - Negotiate every term - Get attorney review - Consider exposure carefully - Specific exit strategies - Document everything **During business:** - Maintain corporate formalities - Don't pierce veil personally - Specific compliance - Strong corporate governance **At default:** - Don't ignore notices - Negotiate with creditor - Consider settlement - Specific defenses - Bankruptcy considerations ## Strategic alternatives **Reduce or avoid guarantees:** **Strong business credit:** - Build corporate credit - Specific procedures - Take time but worthwhile **Higher equity:** - Down payment higher - Reduces lender risk - May reduce guarantee requirements **Other collateral:** - Specific business collateral - Real estate of business - Specific procedures **Different lenders:** - SBA programs - Specific industry lenders - Specific circumstances - Negotiation leverage **Letter of credit:** - Cash collateral - Different mechanics - Specific cost - Sometimes alternative ## Specific guarantee types **Continuing guarantee:** - Future obligations - Open-ended - Highly dangerous - Try to limit **Specific guarantee:** - Specific obligation only - Better for guarantor - Limited scope **Payment guarantee:** - Pay when due - Specific timing **Performance guarantee:** - Performance of contract - Different scope - Specific contracts **Collection guarantee:** - Pay only after creditor pursues principal - Better for guarantor - Specific to language ## What you should do If considering personal guarantee in South Dakota: have business attorney review BEFORE signing. Negotiate every term. Try to limit amount, time, scope. Don't sign without spouse considering. Consider alternatives. Most South Dakota business attorneys handle these matters. Cost of review small compared to potential personal exposure. --- *This guide is general information about South Dakota law as of mid-2026 and is not legal advice. Personal guarantees are technical + significant. Talk to a licensed South Dakota business attorney about your specific situation.*