In early 1970 the ALRI was asked by the Attorney General of Alberta to study the Guarantees Acknowledgment Act, 1969, and to argue for its removal or preservation. The ALRI then examined various facets of the law related to this statute, sought and received the opinions of several practitioners, and subsequently provided several recommendations.
The Guarantees Acknowledgment Act, 1969, should be retained, subject to certain amendments. First, guarantees given on the sale of any interest in land, goods, or chattels should be brought within the scope of the Act. Regardless of the transaction’s size, the Act should apply.
Second, regarding notaries, a section should be added to provide that where a guarantee is provided by anyone other than a notary, there should be no duty to point out or to correct any defects in the form. Also, s 4(1) should be amended such that the notary is under a duty to satisfy himself by examination that of the guarantor so that the latter is aware of the nature and extent of his legal obligations as guarantor, not simply the contents of the agreement.
Finally, sections 4 and 5 of the Act are overly rigid, permitting technical or formal defects to allow parties to remove themselves from agreements where the parties knew and understood their obligations. By tempering the language, the courts will have the flexibility to better ensure that law and justice will prevail, rather than just the law.