Is Persic permitted to release or discharge any security under a loan agreement?

British Columbia, Canada


The following excerpt is from Federal Business Development Bank v. Persic, 1980 CanLII 654 (BC SC):

The petitioner submits this defence cannot succeed because Persic has expressly agreed by the terms of the original loan agreement that the petitioner could release or discharge any security without affecting its rights against the other party. The relevant clause of the loan agreement is para. six. It reads as follows: "The bank shall also be at liberty to release or discharge any party hereto from the obligations of this Agreement or any security given to the bank in conjunction therewith or to accept any composition from or make any arrangements with any party hereto without prejudicing or affecting the bank's rights or remedies against the other party or parties hereto." However, Persic submits that this only means that the petitioner may release or discharge a party from the obligations of any security, but may not release or discharge the security itself. I cannot agree. This is not an exemption clause. Therefore, it need not be construed contra proferentem, that is, against the petitioner: Bank of Montreal v. Bauer (1980), 1980 CanLII 12 (SCC), 33 C.B.R. (N.S.) 291, 10 B.L.R. 209, 110 D.L.R. (3d) 424, 32 N.R. 191 (S.C.C.). Even if it were, to me the plain wording of the clause and its obvious meaning when read with the agreement as a whole, is that the petitioner may release or discharge the security itself. To hold otherwise would render meaningless the words "…in conjunction therewith". That is to say, the security is given "in conjunction" with the obligations of the agreement, not any obligations of a security. I am therefore against Persic on this submission.

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