A recent decision of the Illinois Supreme Court examined the Illinois Sureties Act, which was originally enacted in 1819. That statute affords certain affirmative defenses to sureties in enforcement actions. The court held that that Sureties Act does not afford such defenses to guarantors. The applicability of the Sureties Act to sureties, and not guarantors, may make important the determination of whether a party is a guarantor or surety. However, another court has held that the Sureties Act may be waived by appropriate language in the guaranty contract.
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