Survival of Pre‑Existing Guarantees Despite Later “Entire Agreement” Clauses: Commentary on BWG Foods Unlimited Co v J.A.J. Supermarkets Ltd & Mahon [2025] IEHC 707

Survival of Pre‑Existing Guarantees Despite Later “Entire Agreement” Clauses: Commentary on BWG Foods Unlimited Company v J.A.J. Supermarkets Ltd & Mahon [2025] IEHC 707

1. Introduction

This High Court decision of Barr J, delivered ex tempore on 8 December 2025, addresses a frequent but under‑litigated problem in commercial practice: what happens to a personal guarantee when the underlying trading relationship is later restated in a new written agreement containing a “whole agreement” (entire agreement) clause that does not mention the earlier guarantee?

The plaintiff, BWG Foods Unlimited Company (“BWG”), a well‑known franchisor and wholesaler (including the Spar symbol group), sought summary judgment against the second defendant, Joe Mahon, on foot of a 2012 personal guarantee of the debts of the first defendant, J.A.J. Supermarkets Ltd (a Spar franchisee). The claim related to goods supplied in late 2021 and early 2022 under a Spar Trading Agreement executed in 2016.

The second defendant resisted summary judgment on five grounds, centred on:

  • the alleged supersession of the 2012 guarantee by the 2016 Spar Trading Agreement (which contained a “whole agreement clause”);
  • absence of proof that the same terms and conditions and price list applied over time;
  • failure by BWG to advise him to obtain independent legal advice before signing the guarantee;
  • challenges to the quantum of the debt, including alleged failure to credit substantial payments; and
  • an assertion that the original debtor had ceased trading from 1 December 2021, with a new company taking over the business.

Barr J granted summary judgment against the guarantor for €355,573.48, holding that none of the defences reached the low, but real, threshold of an arguable defence as developed in the case law on summary judgment.

The decision is significant in three principal respects:

  1. It clarifies that a later trading agreement between creditor and principal debtor, containing a whole agreement clause, does not of itself extinguish a prior guarantee given by a third party who is not a contracting party to the later agreement.
  2. It reinforces the principle that creditors are under no general common law duty to advise prospective guarantors to obtain independent legal advice, even where internal policy suggests doing so.
  3. It underscores that a guarantor cannot, in the ordinary course, go behind a final judgment obtained against the principal debtor to re‑litigate quantum, and that bare assertions of a transfer of business without documentary support will not amount to an arguable defence.

2. Factual and Procedural Background

2.1 The trading relationship and the 2012 guarantee

  • BWG and the first defendant, J.A.J. Supermarkets Ltd, had a trading relationship from around 2010 in relation to the operation of a Spar supermarket.
  • On 7 May 2012, the second defendant, Joe Mahon, executed a written personal guarantee in favour of BWG.
  • The guarantee was expressed as a continuing guarantee for:
    “all debts whatsoever and whensoever contracted by the principal debtor in respect of goods to be supplied and capital contributions given to the principal debtor.”
  • The goods were supplied under BWG’s then applicable terms and conditions and price lists, which (as later clarified by affidavit) were the 2010 terms and conditions.

2.2 The 2016 Spar Trading Agreement

  • On 28 September 2016, BWG issued a detailed letter titled the Spar Trading Agreement, addressed to:
    • the second defendant (Mr Mahon),
    • his wife, Mary Mahon, and
    • the first defendant company, J.A.J. Supermarkets Ltd.
  • The letter began:
    “We, BWG Foods (BWG), are delighted that you have decided to remain in the Spar group. We wish to outline our proposal for a trading agreement with your company as follows: …”
  • The agreement set out the commercial terms under which BWG would supply goods and services to the first defendant as part of the Spar group.
  • The document was signed by:
    • the second defendant on behalf of the first defendant,
    • his wife on behalf of the first defendant, and
    • BWG.
  • The agreement annexed BWG’s 2010 terms and conditions.
  • The agreement contained a “whole agreement clause” (or “entire agreement clause”) stating that it would constitute the entire agreement between the parties and supersede prior agreements – a central plank of the second defendant’s argument.

2.3 The debt and litigation

  • By 3 April 2022, BWG claimed that €355,573.48 was due and owing by the first defendant for goods supplied, primarily in the period October 2021 to February 2022.
  • Demands for payment were sent to both the first defendant and to the second defendant as guarantor, including a formal demand letter to the second defendant dated 1 June 2022.
  • No payment was forthcoming. BWG issued a summary summons on 16 June 2022.
  • The first defendant did not appear, and on 15 January 2024 BWG obtained judgment in default of appearance against the first defendant for the full sum claimed and costs.
  • The second defendant, however, entered an appearance and opposed summary judgment, swearing affidavits raising the five heads of defence summarised above.

3. Summary of the Judgment

Barr J refused to remit the matter to plenary hearing and granted summary judgment against the second defendant in the amount of €355,573.48. The key conclusions were:

  1. Existence and scope of the guarantee: The 2012 document was a valid, binding and continuing guarantee covering all debts incurred by the first defendant to BWG for goods and related capital contributions supplied under the terms and conditions applicable at the time of supply.
  2. Entire agreement clause did not extinguish guarantee:
    • The 2016 Spar Trading Agreement was concluded between BWG and the first defendant company.
    • Although addressed to the second defendant and his wife, they signed on behalf of the company and were not contracting parties in their personal capacities.
    • Accordingly, the whole agreement clause in the 2016 contract governed only the relationship between BWG and the first defendant. It did not affect the third‑party 2012 guarantee given by the second defendant.
  3. No duty to procure independent legal advice:
    • Relying on ACC Loan Management v Connelly [2017] IECA 119, the Court held there is no common law duty on a creditor to ensure or advise that a proposed guarantor obtain independent legal advice before signing a guarantee.
    • BWG’s internal policy (if any) on recommending independent advice did not affect the legal validity or enforceability of the guarantee.
  4. Quantum and payments:
    • BWG ultimately produced a detailed statement of account showing all payments credited, including the alleged €263,674.15 in payments during the relevant period.
    • The second defendant could not identify any substantial payment missing from that statement.
    • More importantly, BWG had already obtained default judgment for this sum against the principal debtor; in that context, “it is not open to the surety to seek to go behind that judgment and question the accuracy of the figure”.
  5. Alleged transfer of the business:
    • The assertion that the first defendant had ceased trading on 1 December 2021 and that Kiernan’s Retail South Donegal Ltd had taken over, with BWG’s consent, was unsupported by any documentary evidence (no sale contract, no lease, no written consent).
    • BWG denied having been informed of such a transfer prior to closure of the account in February 2022.
    • Bank statements showed continued payments by the first defendant to BWG after 1 December 2021, undermining the assertion of a complete transfer.
    • This was characterised as a bare assertion falling within principle (xi) of Harrisrange Ltd v Duncan [2003] 4 IR 1 – insufficient to constitute an arguable defence.

On the totality of the evidence, the Court held it was “very clear” that the second defendant had no real defence in law or on fact and therefore summary judgment was appropriate.

4. Detailed Analysis

4.1 The summary judgment threshold

Barr J begins by restating the well‑established Irish test for summary judgment, drawing on a line of authorities:

  • First National Commercial Bank plc v Anglin [1996] 1 IR 75;
  • Banque de Paris v De Naray [1984] 1 Lloyd’s Rep 21;
  • National Westminster Bank plc v Daniel [1993] 1 WLR 1453;
  • Aer Rianta CPT v Ryanair Ltd [2001] 4 IR 607;
  • Harrisrange Ltd v Duncan [2003] 4 IR 1;
  • Allied Irish Banks v Killoran [2015] IEHC 850;
  • Feniton Property Finance dac v McCool [2022] IECA 217;
  • Promontoria (Aran) Ltd v Burns [2020] IECA 87;
  • IBRC Ltd v McCaughey [2014] 1 IR 749;
  • Prendergast v Biddle (Supreme Court, unreported, 31 July 1957).

The central elements, as synthesised in the judgment, include:

  • The defendant must show a “fair or reasonable probability” of having a real or bona fide defence (Anglin; Feniton).
  • The critical questions (Aer Rianta, per Hardiman J at 623) are:
    “Is it ‘very clear’ that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant’s affidavits fail to disclose even an arguable case?”
  • There is a “relatively low threshold” for a defendant (Feniton), but it is still a threshold: the court must filter out:
    • “spurious, fanciful, or conjectural contentions” invoked merely to delay, as warned in AIB v Killoran, and
    • “mere assertion” unbacked by evidence, as per principle (xi) in Harrisrange and the comments of Clarke J in IBRC v McCaughey.
  • Public interest and court resources: simple debt claims should not automatically be forced into plenary hearing with attendant delay and cost (Feniton; Burns).

Against this backdrop, Barr J frames his task as assessing whether each of the five defences clears that threshold. His repeated characterisation of certain arguments as having “no substance” or being “merely an assertion” is a direct application of these authorities.

4.2 The continuing guarantee and the entire agreement clause

4.2.1 Nature of the 2012 guarantee

The guarantee signed on 7 May 2012 was, by its own terms, a continuing guarantee for all debts of the first defendant to BWG “whatsoever and whensoever contracted” for goods supplied and capital contributions. The judge emphasises:

  • It covered future debts from the date of signing onwards.
  • Indebtedness would arise “on foot of goods supplied subject to the terms and conditions and price lists as applying at the time when the goods were supplied”.

This language is classic “all‑monies” or “all‑accounts” guarantee drafting, designed to secure the guarantor’s liability for any and all future indebtedness, not limited to a particular contract or period. Such guarantees are widely used in commercial credit arrangements, especially in franchising and wholesaling contexts like Spar outlets.

4.2.2 Who were the parties to the 2016 agreement?

The second defendant’s main legal defence was that the 2012 guarantee was “superseded” by the 2016 Spar Trading Agreement and that the latter’s entire agreement clause rendered the guarantee inoperative.

Barr J approaches this in two logical steps:

  1. Characterisation of the 2016 agreement’s parties. Although the Spar Trading Agreement letter was addressed to three addressees (the second defendant, his wife and the first defendant), the judge held:
    • “it is very clear from the content of the letter… that the agreement was between the plaintiff and the first defendant.”
    • The second defendant and his wife were merely the individuals with whom BWG had historically dealt on behalf of the company, and they signed in that representative capacity.
    • Therefore, as a matter of contract formation, the only parties to the 2016 agreement were BWG and J.A.J. Supermarkets Ltd.
  2. Scope of the entire agreement clause. The judge accepts that the whole agreement clause governs “the totality of the legal relationship between the plaintiff and the first defendant”. However:
    “as the court has already found that the second defendant was not a party to that agreement… the fact that there is no reference in the 2016 agreement to the pre‑existing contract of guarantee of 2012, is of no relevance.”

    Thus, the entire agreement clause regulates only the contractual matrix between BWG and the principal debtor, not the separate surety relationship between BWG and the guarantor.

The critical doctrinal point is that an entire agreement clause, however broadly worded, cannot unilaterally nullify a separate, earlier contract with a different party unless that contract is clearly brought within its scope or is effectively novated or discharged by express agreement.

Consequently, the absence of any reference to the 2012 guarantee in the 2016 trading agreement did not extinguish it. Barr J’s conclusion is emphatic:

“The court rejects the submission … that the fact that there is a ‘whole agreement clause’ in the 2016 agreement rendered the 2012 guarantee inoperative. There is no substance in this ground of defence.”

4.2.3 Wider legal significance

While the decision rests squarely on privity of contract – the guarantor simply was not a party to the later contract – it has broader implications:

  • Commercial counterparties should not assume that renegotiating or restating their trading relationship, even with a robust entire agreement clause, will automatically discharge prior guarantees.
  • To discharge or replace a guarantee, creditors and guarantors should use clear, intentional drafting (for example, a deed of release, a new guarantee expressly superseding the old, or a novation agreement).
  • Guarantors cannot rely on silent entire agreement clauses in subsequent contracts to argue that their personal liabilities have quietly evaporated.

4.3 Terms and conditions and the temporal scope of the guarantee

A related defence argued that BWG had not shown that the terms and conditions of trading and applicable price lists at the time of signing the 2012 guarantee were the same as those in force in 2016 or during the 2021–2022 supply period.

Barr J deals with this succinctly:

  • The 2012 guarantee was expressly drafted to cover goods and materials supplied under the terms and conditions and price lists “then applying” at the time the goods were supplied.
  • Therefore, it was inherently forward‑looking and contemplated future changes in terms and conditions and prices.
  • BWG produced the 2010 terms and conditions that applied when the guarantee was executed and tied them into the later arrangements.

The defence is therefore misconceived: the guarantee’s wording assumes that terms and conditions and price lists will evolve over time and binds the guarantor to debts arising under those future terms, without requiring a fresh guarantee each time the commercial framework is updated.

4.4 Duty to advise the guarantor to obtain independent legal advice

4.4.1 The defendant’s argument

The third defence rested on BWG’s alleged failure to comply with its own internal policy that potential guarantors should be advised to obtain independent legal advice. The second defendant suggested that:

  • He had not been so advised in 2012.
  • This failure should affect the enforceability of the guarantee.

4.4.2 The Court’s reliance on ACC Loan Management v Connelly

Barr J rejects this as a matter of law, accepting submissions (per Mr Brady BL) that Irish law imposes no such duty. He relies on ACC Loan Management v Connelly [2017] IECA 119, citing Finlay Geoghegan J (para. 28) and Hogan J (para. 25) for the proposition that:

“no such duty rests upon the company or person in whose favour the guarantee will operate.”

In other words:

  • At common law, a creditor is not required to:
    • ensure that a guarantor has taken independent legal advice, or
    • even advise the guarantor to obtain such advice,
  • before the guarantee becomes binding and enforceable.

That is so even if internal policies say otherwise. Internal policies may have compliance or regulatory implications, but they do not, without more, convert into legal duties owed to the guarantor.

4.4.3 Absence of vitiating factors

The judge also stresses that the second defendant did not allege:

  • that he did not sign the guarantee;
  • that he signed under undue influence, duress or misrepresentation; or
  • that he lacked capacity or understanding (for example, via a non est factum plea).

In that evidential context, the absence of independent legal advice has even less purchase. In many undue influence cases, the lack of independent legal advice can be evidence supporting a plea that the guarantor did not enter the transaction freely or informedly. But without any such allegation, the absence of advice, standing alone, cannot invalidate an otherwise regular guarantee.

4.5 The 2017 request for an additional guarantee

The second defendant relied on a 2017 request from BWG that Mrs Mahon provide a personal guarantee. He argued that this showed BWG considered the 2012 guarantee to have been superseded by the 2016 trading agreement, and that BWG was trying to “plug a gap”.

Barr J rejects this logic. He notes several plausible commercial reasons for BWG’s request, including that:

  • BWG may have viewed the existing guarantee from one spouse as inadequate security for the expanding level of indebtedness; or
  • BWG may have perceived that Mrs Mahon herself held significant assets and sought additional security.

More fundamentally, the judge emphasises that the act of seeking further security does not retrospectively render an earlier guarantee “unlawful or inoperative”. Creditors routinely enhance their security packages over time; that does not, without a clear release or novation, undermine existing guarantees.

4.6 Quantum, payments, and the effect of judgment against the principal debtor

4.6.1 Alleged failure to credit payments

On quantum, the second defendant initially contended that BWG had failed to give credit for payments totalling €263,674.15. As the affidavit evidence evolved:

  • BWG’s first two statements of account were less detailed, leading to some confusion.
  • In his third affidavit, Mr Kilmartin produced a fuller statement showing all payments during the relevant period.
  • The judge notes that “the substantial payments… were credited by the plaintiff” and that the second defendant could not point to any missing significant payment when comparing his bank statements with BWG’s final statement of account.

The initial point therefore fell away at the level of factual detail: once the more granular account was provided, the alleged failure to credit payments was not substantiated.

4.6.2 The significance of default judgment against the principal debtor

The more legally important point was the effect of the existing default judgment against the first defendant (principal debtor). Barr J highlights two consequences:

  1. Behavioural implication: If the first defendant truly believed that BWG had not credited substantial payments, it is unlikely it would have allowed judgment to be marked in default without contesting quantum.
  2. Doctrinal implication:
    “where a creditor has obtained judgment against the principal debtor, it is not open to the surety to seek to go behind that judgment and question the accuracy of the figure that was obtained…”

This is a strong statement of the principle that the liability of a surety (guarantor) is, as a rule, co‑extensive with the established liability of the principal debtor. Once that liability has been crystallised by a court judgment, the guarantor generally cannot re‑litigate quantum in collateral proceedings, absent exceptional circumstances (for example, where the judgment was obtained by fraud or without jurisdiction – though such exceptions are not discussed here).

For practitioners, this underlines that:

  • Quantum disputes should be raised at the earliest stage by the principal debtor.
  • Guarantors cannot treat their own proceedings as a backdoor appeal against a final judgment obtained against the company.

4.7 Alleged transfer of business and cessation of trading

4.7.1 The defendant’s averment

The fifth defence was the most factually specific. In his second affidavit, the second defendant averred that:

  • As of 1 December 2021, the Spar shop’s operation was transferred to Kiernan’s Retail South Donegal Ltd.
  • This was done “with the consent of the plaintiff”, and arose because BWG would no longer supply the first defendant.
  • The first defendant was “not involved in the operation” of the Spar franchise from 1 December 2021.
  • A “formal transfer of the lease” from the first defendant to Kiernan’s was allegedly effected.
  • The first defendant allegedly did not trade with BWG for the final 75 days of the statement period.
  • On that basis, the defendant pointed out that the balance on 30 November 2021 was €113,153.63, substantially less than the €355,573.48 claimed, and argued that post‑1 December debts were not recoverable under the 2012 guarantee.

4.7.2 Evidential deficiencies identified by the Court

Barr J dismantles this defence on several grounds, focused chiefly on the inadequacy of the evidence:

  1. No such defence raised by principal debtor. The first defendant did not raise this allegedly “substantial ground of defence” but instead allowed default judgment to be marked for the entire claim. This weakens the credibility of the transfer narrative.
  2. No documentary evidence of sale or transfer. The judge notes that one would expect a detailed written contract if there had been a sale or transfer of a going‑concern retail business, including:
    • consideration (price), and
    • provisions dealing with pre‑existing debts to suppliers such as BWG.
    No such document was exhibited.
  3. No evidence of lease transfer. Similarly, in a supposed transfer of a commercial lease to a new entity, one would expect:
    • a written lease, or at least
    • some written record of terms between the parties or their solicitors.
    Again, none was produced. The alleged transfer of lease was entirely uncorroborated.
  4. BWG’s denial of consent and knowledge. In his final affidavit, Mr Kilmartin denied any knowledge of a transfer before closure of the account on 13 February 2022 and denied that BWG had consented. The second defendant produced no written consent or correspondence to contradict this.
  5. Inconsistent bank statements. Perhaps most damagingly, bank statements exhibited by the second defendant himself showed significant payments by the first defendant to BWG after 1 December 2021 and before 13 February 2022, contradicting the assertion that the first defendant had ceased trading with BWG during that period.

Against this background, the Court concludes that para. 4 of the second defendant’s affidavit consists of “merely an assertion”, which by reference to principle (xi) in Harrisrange is inadequate to warrant leave to defend.

This is a textbook illustration of how the “mere assertion” principle works in practice: even where a defendant’s story, if true, might amount to a defence (e.g. a complete novation or substitution of debtor), it must be grounded in some credible evidence to cross the “fair and reasonable probability” threshold.

5. Simplifying Key Legal Concepts

5.1 Summary judgment

Summary judgment is a fast‑track procedure allowing a plaintiff to obtain judgment without a full trial where:

  • The claim is for a debt or liquidated sum; and
  • The defendant has no arguable defence in law or on fact.

The court looks at the affidavits and exhibits rather than oral evidence. If the defendant shows a “fair and reasonable probability” of a real defence, the case proceeds to a full (plenary) hearing. If not, judgment is entered summarily.

5.2 Continuing / “all‑monies” guarantee

A continuing guarantee (often called an “all‑monies guarantee”) is a promise by a guarantor to be liable for:

  • all present and future debts of the principal debtor to the creditor,
  • usually up to a specified cap (though in this case no cap is mentioned in the judgment).

It is not limited to a single transaction or contract. It stays in place until terminated in accordance with its terms or discharged by law (for example, by agreement, expiry, or certain fundamental variations).

5.3 Entire agreement (whole agreement) clause

A whole agreement clause states that:

  • the written contract in question contains the entire agreement between the parties; and
  • it supersedes prior agreements or understandings between those same parties.

Its usual purpose is to:

  • prevent parties later claiming that side promises or prior drafts form part of their contract; and
  • give certainty and minimise disputes about pre‑contract representations.

It does not generally extinguish:

  • contracts with different parties (as in this case, the separate guarantee); or
  • post‑contract variations that comply with the contract’s own variation provisions.

5.4 Principal debtor, creditor and guarantor (surety)

  • The principal debtor (here, J.A.J. Supermarkets Ltd) is the person who owes the primary debt.
  • The creditor (here, BWG Foods Unlimited Co) is the person owed the money.
  • The guarantor or surety (here, Mr Mahon) promises to pay the creditor if the principal debtor does not.

A guarantor’s liability is usually described as “co‑extensive” with that of the principal debtor: if the principal owes a valid, enforceable debt, the guarantor must pay, subject to the terms of the guarantee and any defences available.

5.5 Default judgment

A judgment in default of appearance is a court order entered when a defendant fails to enter an appearance or defence in time. It fixes the defendant’s liability without a contested hearing. In this case, BWG obtained such a judgment against the principal debtor, and that judgment amount then largely controlled the guarantor’s exposure.

5.6 “Mere assertion” and evidential threshold

In summary judgment proceedings, the court distinguishes between:

  • a “mere assertion” (a bald statement unsupported by evidence or detail), and
  • a properly grounded factual contention (supported by documents, specifics, or credible explanation).

As McKechnie J put it in Harrisrange (principle (xi)):

“leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence.”

Barr J applies this principle directly to the alleged transfer of business defence.

6. Impact and Significance

6.1 Clarifying the relationship between guarantees and entire agreement clauses

The most distinctive doctrinal contribution of this case is its clear and practical treatment of how a later contract with an entire agreement clause interacts with a prior guarantee:

  • Where:
    • a guarantee is given by a third party in year 1;
    • the creditor and principal debtor later sign a new trading agreement in year 4 containing a whole agreement clause; and
    • the guarantor signs the later agreement only in a representative capacity,
  • the whole agreement clause will not, without more, discharge the earlier guarantee.

This is particularly important in sectors where:

  • credit facilities and franchise or supply agreements are periodically reviewed and re‑documented; and
  • personal guarantees from business owners or directors are common.

The judgment encourages clear drafting: those wishing to terminate or limit guarantees on the introduction of new trading agreements should do so expressly, rather than relying on general entire agreement wording.

6.2 Reinforcement of the no‑duty rule on independent legal advice

By reaffirming the principle from ACC Loan Management v Connelly, this judgment strengthens the position that:

  • the validity of guarantees does not depend on creditors ensuring independent legal advice for guarantors; and
  • failure to follow an internal policy on recommending advice will not, in itself, provide a defence.

While regulatory or conduct of business rules (especially in consumer contexts) may evolve, in the commercial sphere this decision confirms that Irish courts will not construct additional common law duties around independent advice, absent specific statutory intervention or vitiating factors such as undue influence.

6.3 Summary judgment practice: a robust application of the “low but real” threshold

The case is also a strong reaffirmation of the modern approach to summary judgment:

  • Court resources and the public interest require that straightforward debt claims not be pushed to plenary hearing on the basis of speculative or poorly supported defences.
  • Defendants must go beyond:
    • unparticularised complaints about quantum,
    • vague allusions to business transfers, or
    • criticisms of internal policies.
  • Instead, they must produce a coherent, evidence‑based narrative that, if proven, would amount to a defence.

Barr J’s methodical demolition of each defence, especially on the alleged transfer of business, sends a clear signal: in commercial debt and guarantee litigation, the courts will scrutinise defences for evidential substance, not merely rhetorical plausibility.

6.4 Implications for guarantors and commercial creditors

For guarantors and their advisers:

  • Do not assume that later contractual documentation between a creditor and a debtor releases you, unless:
    • the guarantor is expressly released, or
    • a clear novation or termination of the guarantee is documented.
  • Be alert that allowing a judgment in default to be taken against the principal debtor will severely constrain the guarantor’s ability to contest quantum.
  • If there has been a genuine transfer of business or substitution of debtor, ensure that it is documented and that the creditor’s consent is clearly evidenced.

For creditors and franchisors/suppliers:

  • This judgment supports the robustness of standard continuing guarantee wording, even as trading relationships are periodically refreshed by new agreements.
  • It also validates reliance on those guarantees at the summary judgment stage where defences lack documentary support.
  • Nonetheless, best practice remains to:
    • keep clear centralised records of guarantees and their status, and
    • consider expressly confirming the continued existence of guarantees when entering into major new trading agreements.

7. Conclusion

In BWG Foods Unlimited Company v J.A.J. Supermarkets Ltd & Mahon [2025] IEHC 707, Barr J delivers a clear and practically important ruling on three fronts:

  1. A 2012 continuing guarantee remained fully operative despite a later 2016 Spar Trading Agreement containing an entire agreement clause, because that later contract was between BWG and the principal debtor only; it could not, and did not, extinguish a separate guarantee contract with a third‑party surety.
  2. There is no common law duty on a creditor to ensure or advise that a guarantor obtain independent legal advice; breach of any internal policy on this point does not affect enforceability absent traditional vitiating factors.
  3. Once a creditor has obtained judgment against the principal debtor, a guarantor generally cannot challenge the quantum of that debt in subsequent guarantee proceedings. Moreover, defences based on alleged transfers of business or cessation of trading must be grounded in cogent evidence, not unsupported assertions.

The case thus solidifies several strands of Irish law on guarantees and summary judgment, and it sends a strong message about the evidential standard required of defendants resisting summary enforcement of commercial debts. For practitioners, it provides a useful authority on the durability of continuing guarantees in the face of later contractual restructurings and reaffirms the courts’ willingness to grant summary judgment where no real defence is shown.

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