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Cummins, Juliet Lucy --- "Relationship debt and the aged: welfare vs commerce in the law of guarantees" [2002] AltLawJl 25; (2002) 27(2) Alternative Law Journal 63

Relationship debt and the aged: Welfare vs commerce in the law of guarantees

Juliet Lucy Cummins[*]

Older guarantors are a vulnerable group without adequate legal protection.

Older people who guarantee the loans of younger relatives form a special instance of ‘relationship debt’ which has not received adequate recognition. Recently, welcome attention has been directed to the problems associated with ‘sexually-transmitted debt,’ debt acquired by a spouse or partner (usually a woman) which remains even after a partnership breaks up.[1] Following a series of articles and books on sexually-transmitted debt in the 1990s, the High Court decided to recognise a controversial ‘special rule’ protecting women who guarantee their husbands’ debts, and indicated that it may extend this rule ‘to long term and publicly declared relationships short of marriage between members of the same or of opposite sex’.[2] In doing so, the Court passed over an opportunity to respond to the needs of all guarantors with an emotional dependence on the borrower, such as parents of adult borrowers. Older guarantors remain a vulnerable group with special needs which are, at present, given inadequate legal protection.

This article argues that older Australians are particularly susceptible to being persuaded to act as guarantors against their better judgment, and that the consequences of having to honour the guarantee are much harsher for them than for their younger counterparts. In order to suggest how the law should address this problem, I examine the divide between the law’s commercial construction of guarantee transactions and the guarantor’s and borrower’s typical experiences of them. I argue that the law is not sufficiently adapted to recognise the social and familial contexts in which most guarantees are given, and consequently is often unjust in its treatment of elderly people who agree to act as guarantors for family members. The liberal, commercial foundations of contract law make it an unsuitable vehicle for protecting the aged and disadvantaged. The best way to address the injustices suffered by older guarantors is by way of statutory reforms which intervene before the creditor–guarantor relationship has been created. These would require creditors to inform themselves of prospective guarantors’ financial and emotional circumstances before entering into a transaction, and would restrict the capacity of guarantors to mortgage their homes to guarantee the debts of a third party.

The social and familial contexts of guarantee transactions

Older Australians typically offer security to family members without receiving any direct financial benefit in order to assist family members or because they do not wish to disrupt family relationships by refusing. Older people are particularly liable to be asked to act as guarantors, as a high proportion of them own their own home and they often have adult children in need of financial assistance.[3] According to American research, older people who own a house are statistically ‘almost three times more likely to have been [financially] exploited than those who [do] not own a house’.[4] Older guarantors are also likely to be vulnerable to financial exploitation due to potential mental and physical decline and increased emotional and physical dependence on family members. Further, if called on to pay a borrower’s debts, they will generally bear a greater burden than their younger equivalents, as calls on capital may endanger their source of income or deprive them of a home they would be unable to replace.

The existing legal safeguards for third party guarantors do not take adequate account of the social context in which guarantees or security are given. This is largely because guarantees are part of commercial law, and the law has evolved to protect the interests of lenders. As Belinda Fehlberg points out, guarantors ‘who provide security as a result of an intimate personal relationship rather than commercial motivations’ are ‘likely to find that factors they perceive to be crucial to their decision to sign, such as subtle emotional pressure … are regarded by the law as irrelevant’.[5] While the common law protects guarantors to a certain extent by recognising voiding factors such as undue influence and unconscionability, the key to success is the lender’s knowledge of or participation in the vitiating circumstances. Courts are generally not in a position to grant relief where a lender has no notice of a guarantor’s position of special disability, or where a borrower has placed undue influence on a guarantor to enter into a transaction, without the lender’s knowledge. Thus, evidence about the familial circumstances which caused the guarantor to sign is often legally irrelevant, since these circumstances generally belong to the private realm, as opposed to the public, commercial world about which the lender has knowledge.

The law’s focus on the relationship of lender and borrower in guarantee transactions results in a wilful blindness to the relationship of borrower and guarantor, except where the lender has knowledge of that relationship. What is important, according to the common law, is that the lender’s commercial interests are recognized, except where the lender has acted unconscionably or unfairly. These values frequently preclude judges from remedying injustices caused by the borrower’s behaviour towards the guarantor. Another consequence is that the law has traditionally treated the relationship between lender and guarantor as one of secondary importance, and therefore has not imposed on the lender duties to the guarantor.[6]

Australian law has recently gone some way to recognising the problems associated with guarantees given in familial contexts, but has stopped short of protecting older Australians guaranteeing their children’s debts. In Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, the High Court was asked to uphold the ‘special rule for wives’ articulated in Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, or, alternatively, to recognise a broader rule protecting cohabitees as the House of Lords had done in Barclays v O’Brien [1993] UKHL 6; (1994) 1 AC 180. The majority of the High Court followed Yerkey in holding that it would be unconscionable for a lender to enforce a guarantee against a borrower’s wife if she had not understood the nature and effect of the transaction and the lender or an independent party had not taken steps to explain them to her (at 408-9). The basis for this rule, the Court explained, was not a presumption that the husband had exercised undue influence over his wife, but rather that the marital relationship should alert the creditor to a relationship of ‘trust and confidence’ between borrower and guarantor meaning that the guarantor ‘may well receive from the debtor no sufficient explanation of the transaction’s purport and effect’ (at 409).

The High Court’s response to the issue of relationship debt in Garcia is partial and unsatisfactory. Firstly, it is essentially creditor-focused in that it concentrates on the creditor’s knowledge and behaviour rather than directly on the relationship between the borrower and the guarantor, and as a result is not adapted to the guarantor’s needs. While it is important that the law recognises the commercial interests of creditors, the Garcia decision does this without sufficiently balancing these interests against those of individuals who are unreasonably pressured into risking their assets by guaranteeing the loans of family members. The law is not, for example, prepared to remedy injustices caused by the borrower placing powerful emotional pressure on his wife to guarantee a debt, where she understands the financial and legal consequences of her decision.

Secondly, the rule in Garcia currently only protects wives. While the Court indicated that the rule may one day cover all guarantors cohabiting with the borrower, there was no suggestion that it should apply to other relationships of emotional dependence. As Kirby J pointed out in his dissenting judgment, this is an ‘unnecessary compartmentalisation of equitable principle’ (at 428). As such, the decision has failed to protect certain categories of vulnerable contractors, including older Australians.[7] Kirby J’s more radical proposal was to extend the rule in Barclays v O’Brien to apply to situations where the creditor knows or ought to know that the guarantor is in a relationship of emotional dependence on the borrower, a proposal which would have given more protection to older Australians guaranteeing the debts of their children.

Australian law thus remains inadequate in its protection of older guarantors. Often such guarantors are taken advantage of by younger, adult relatives without the creditor’s knowledge. Even where a creditor has grounds to believe that emotional pressure is being placed on a guarantor by a borrower, the law may nevertheless consider the guarantor to have entered into the contract freely. As has been argued in the case of sexually-transmitted debt, it is ‘the fact of the relationship that dominates a surety’s entry into the transaction’ and as a result the decision is usually not ‘a result of his or her free choice’.[8] In Belinda Fehlberg’s influential study of sexually-transmitted debt, ‘[s]ureties consistently said that at the time of signing, they felt they had no choice about whether or not to sign.’[9] The law is slow to recognise such subtle forms of emotional pressure, which can sometimes be exerted without anything being said at all. Thus, where an older person is prevailed on through emotional pressure to guarantee the debts of a family member, the courts frequently do not acknowledge that there has been any legal wrongdoing.

The Australian courts’ approach to the issues of wrongdoing and consent is well illustrated by Janesland Holdings Pty Ltd v Francisc Simon & Ors [1999] ACTSC 35; [2000] ANZ ConvR 112, where the guarantors, Mr and Mrs Simon, were pensioners in their sixties with limited English and little education. After months of pressure from their son, they reluctantly agreed to mortgage their home to secure a loan to finance his business. Their son then disappeared overseas, leaving the loan unpaid. Crispin J found that the Simons ‘had judged the transaction to be both improvident and contrary to their interests’ (at 118) but had signed due to the pressure from their son and their desire to help him. The judge commented that:

Parents frequently guarantee loans made to their children in circumstances which an objective observer might well conclude to be improvident. In many cases the parents are well aware of the improvidence of their decision but have agreed, however reluctantly, to proceed with the transaction because of their affection for their children, a perception that a refusal might be damaging to their relationship with them, and/or a conviction that they deserve the chance to make good. [at 120]

In this passage, Crispin J comes close to recognising that the fact of the parental relationship is in itself enough to affect the quality of a guarantor’s consent: the combination of parental affection and fear of damaging a relationship is often sufficient to lead the parent to reluctantly enter an improvident transaction and so the parent’s freedom is effectively impaired. However, as Crispin J was quick to point out, the ‘contract of guarantee will be unenforceable only if the lender’s conduct has been unconscionable’ (at 120). As it was not, the Simons lost their home. It was, as the Federal Court noted on an unsuccessful appeal, ‘a sad case’ for the Simons: Simon v Janesland Holdings Pty Ltd [1999] FCA 1550; [2000] ANZ ConvR 477 at 477.

The harsh application of commercial principles in familial situations is also illustrated by Tessman v Costello [1987] 1 QdR 283. In that case, a man asked his parents to execute a mortgage over their home to inject funds into his business. The mother suffered from multiple sclerosis and hypertension and died before the case came to trial. The father, who was in his seventies, suffered from chronic obstructive airways disease and hypertension, having reduced concentration span and poor memory. The parents were therefore particularly susceptible to financial and emotional manipulation on the part of their son, and agreed to execute the mortgage. When the son’s business failed and the lender wanted to sell the parents’ home, the father claimed that the bank was aware of his son’s undue influence and unconscionable conduct.

The claim failed because of the bank’s lack of knowledge of the circumstances surrounding the transaction. Williams J commented starkly that ‘the fact that parents are motivated to guarantee a son’s financial transactions by high hopes of the latter’s business expectations does not mean that a bargain so entered into is “unconscionable” ’ (at 293). This approach renders the guarantors’ vulnerability due to their age, state of health and the familial bond with their son legally irrelevant. By focusing primarily on the creditor’s state of knowledge, the law becomes distant from the experiences of both borrower and guarantor, and thus lends itself to injustice to the guarantor.

The conflict between liberalism and welfarism in familial contracts

The application of commercial law principles in emotional or familial situations can also be detrimental to the consistency and predictability of judicial decision-making, as it can encourage judges to ‘bend the rules’ in order to achieve substantive justice. When faced with an older guarantor in danger of losing their home, courts have to balance the interests of lenders against law’s concern to provide justice and protection to the weak or disadvantaged. This places tension on the theoretical foundations of contract law. Contract law is, as Alan Thomson notes, based on a ‘liberal individualist conception of justice (which restricts justice to general rules of just conduct and ignores the fact that different people and groups have different access to the resources of wealth, education and power)’.[10] However, adherence to this conception of justice has been weakened in the legislative and judicial spheres with the rise of the welfare state.[11] The effect of a model of justice which combines capitalism and individualism with welfare theory can be seen in the softening of contract law to extend existing categories of relief to protect the disadvantaged.[12] And yet principles of commercial fairness cannot always be reconciled with welfare principles, leading to contradictions in the theory and application of contract law.[13]

Courts’ concern to protect older, vulnerable contractors and to cure injustice sometimes contributes to the unpredictability and inconsistency of judicial interpretations of relevant legal and factual categories. The question whether the plaintiff is in a position of ‘special disability’ or ‘special disadvantage’ for the purposes of an unconscionability claim, for example, involves the exercise of discretion, and judges often differ as to its application. The scope for subjectivity associated with applying standards is evident in Archer v Archer [2000] NSWCA 314, where the NSW Court of Appeal held by a majority of two to one that a mother who gifted a farming property to her son was not entitled to relief on the grounds of unconscionability or undue influence. The majority focused on the mother’s assertiveness and apparent willingness to enter the transaction, whereas Beazley JA in dissent emphasised the mother’s dilemma in ‘having to stand on her own against the wishes of her husband and son or acceding to those wishes and interests at the expense of her own’ and also considered the mother’s long-term financial insecurity as a result of her decision.

The case reflects the effect of different attitudes to justice and different understandings of the function of contract law on judical decision making. The majority interpreted the facts consistently with a liberal conception of contract. Handley JA found nothing in the circumstances to suggest that Mrs Archer was in any position of disadvantage in dealing with her son, inferring her contractual freedom from her awareness of the effect of the documents she signed. On the other hand, Beazley JA looked more to the underlying, social and psychological constraints on Mrs Archer’s freedom, interpreting her concern for her husband’s health as contributing to her position of disadvantage.

The tension between a commercial approach to contract law and a more welfare-oriented approach is also apparent in Micarone & Anor v Perpetual Trustees Aust Ltd & Ors [1999] SASC 265; (1999) 75 SASR 1. Mr and Mrs Micarone were pensioners aged 72 and 65 with limited education and little knowledge of English. Their son-in-law placed sustained pressure on them to mortgage their home in order to secure a loan to assist their daughters to purchase a business. They eventually agreed, without obtaining any independent advice. The daughters failed to meet the repayments on the loan and the lender commenced proceedings for possession of the Micarones’ home. The majority in the South Australian Court of Appeal rejected the Micarones’ claim of unconscionability which had succeeded at first instance, adopting a tougher, more commercial approach. It found that the Micarones had a ‘good deal of experience with financial transactions of this kind and, in particular, knew the consequences of default’ (at para 598, p.113), despite their age, limited English and strong family attachments.

The dissenting judgment of Olsson J focused not so much on the Micarones’ knowledge of the effect of the transaction as on the wider social context in which it took place. Approaching the question of the Micarones’ alleged disadvantage from a broader social perspective, his Honour rejected the lender’s submission that Mr Micarone ‘had a reasonably sophisticated grasp of commercial loans’ (at para 198, p.38). He warned that it ‘is a serious mistake simply to seek to distill out an alleged level of understanding of a party of the technical structure and nature of a transaction; and to argue from that that there was no special disability … Such an approach … ignores the importance and significance of the overall complex of factors which went to constitute the prima facie disadvantage of each of the plaintiffs’ (at para 203, p.39). Olsson J also held that there was undue influence on the Micarones arising from the family relationship between them and their children and the degree of dominance, prolonged continual pressure and manipulation brought to bear on them (at para 285, p 51). The split in the perspectives and conclusions of the four judges involved in this case is characteristic of judicial differences which destabilise the law relating to vitiating factors in contract.

Differences in judicial approaches to the position of vulnerable guarantors are, to a certain extent, inevitable. The articulation of differences in judicial opinion contributes to the legitimacy of the courts and the principled development of the common law. However, the conflict between the courts’ responsibilities to protect vulnerable contractors from exploitation or injustice on the one hand, and to ensure the consistency and predictability of contract law on the other, brings with it particular problems. Contract law is limited in its capacity to protect the vulnerable. The development of equitable categories such as undue influence and unconscionability offers some protection but, as Rick Bigwood points out, conscience as a doctrine does not achieve ‘altruism … distributive (or social) justice, welfarism, communitarianism, substantive fairness, or paternalism’ for it ‘does not require contracting parties to abandon the assumptions of the liberal, individualistic conception of contract’.[14] When judges do abandon or modify these assumptions, the result is often unpredictability and uncertainty in the law.

The protection of prospective contractors for social or welfare reasons is best achieved by statute. Statute has the flexibility to impede people from entering into improvident transactions in the first place, to modify the terms of contracts, to specify procedures which have to be followed before a contract is effective, and to impose duties on parties with greater bargaining power.

How should the law protect vulnerable guarantors?

The protection of older guarantors in particular, and vulnerable guarantors generally, can best be achieved by balancing paternalism with a respect for the autonomy of contracting parties. The tension between the law’s competing aims to recognise individual autonomy and to protect the vulnerable is particularly great in relation to older Australians. Such Australians are frequently vulnerable for the physical, emotional and social reasons outlined above. However, many are physically and intellectually unimpaired and capable of making independent decisions based on a lifetime of experience. It is thus necessary to balance respect for the independence and wisdom of many older people against a need to protect those who are at risk of being exploited.

Due to the origins of contract law in liberal economic theory, contract law tends to assume the autonomy of the parties and only to make exceptions in extreme cases, such as where one party to a transaction has exploited the other unconscionably. The liberal model of contract law fails to address situations where a party’s autonomy is compromised by emotional pressure or by factors associated with age. The provision of independent advice, a solution often offered by statute and case law alike, does not adequately address the emotional and familial issues which affect the quality of a guarantor’s consent in cases of relationship debt.[15] In such cases, some degree of paternalism is justified to protect prospective guarantors whose freedom is likely to be adversely affected.

There is now a widespread recognition that contract law is insufficiently adapted to dealing with relationship debt, but proposals for reform have been limited in scope. Belinda Fehlberg suggests that ‘effective protection’ for sureties could be created by an Act which ‘preclude[d] creditor reliance on all charges given [over the family home] even with the consent of both spouses’ and which ‘cover[ed] all owner-occupiers (not just spouses)’. However, she then retreats from this suggestion, on the basis that ‘there is little indication that this approach would receive widespread social support’.[16] Similarly, Misty Bailey advocates reforms which would require guarantors to receive ‘truly independent legal and financial advice’ and which would ensure that guarantors are better informed about their obligations. However, she admits that ‘such options for law reform will do little to resolve the fundamental problem faced by sureties in STD contracts: the lack of choice experienced by the surety, constraining their ability to enter voluntarily into the transaction’.[17] Even when lawyers are mindful of the particular vulnerability of older guarantors, they are generally distant from the emotional circumstances of the guarantor, and limited in their capacity to intervene in a situation where a relative is placing pressure on the guarantor.

An effective way of protecting vulnerable guarantors without compromising their autonomy is to require that the lender inform itself of the guarantor’s social and familial position. Frequently, lenders are able to defeat claims of unconscionability, undue influence and statutory claims of ‘unjust’ contracts, by claiming that they were unaware of the guarantors’ situation. A requirement that prospective guarantors complete and give to lenders a statutory questionnaire before entering into a guarantee would substantially address this problem.[18] Failure to comply with this formality should fix the lender with knowledge of any undue influence on the part of the borrower and with knowledge of a guarantor’s position of special disability, if either could reasonably be expected to have been revealed by the questionnaire. The questionnaire should solicit information concerning the borrower’s relationship to the guarantor, the guarantor’s age, the guarantor’s main source of income, the guarantor’s financial circumstances, the reasons why the guarantor is signing, the guarantor’s perception of the emotional pressures on him or her to sign and the guarantor’s understanding of the borrower’s financial position. While this reform would not remove the guarantor’s experience of a lack of choice, it would inform the lender of this experience, and so make this a factor in the early bargaining and assessment process.

Another significant form of protection for guarantors could be achieved by substantially restricting the use of the family home as security for the debts of a third party. The most serious injustices occur where parents feel obliged to provide their family home as security for their children or other relatives’ debt, as in the Micarone and Simons cases discussed above. The potentially serious consequences of such a decision justify the introduction of legislation prohibiting the use of the family home as security for the debts of a third party, except where that third party is a family company owned entirely by the home-owners. Unlike Fehlberg’s proposal, this measure would apply specifically to third party guarantors, would not affect home owners mortgaging their own homes to finance business interests, and so would be far more politically and socially viable. In its application to older Australians, such a law would support home ownership and thus protect the financial independence of seniors which compulsory superannuation schemes seek to achieve.

The greatest criticism of such legislation is that it would restrict the access of family businesses to credit.[19] And yet, even though it may prevent young people using their parents’ home as security to support their businesses, it would not prevent them borrowing from a lender on the strength of the financial viability of their business. Lenders would then be forced to decide whether to accept the risk of lending to family businesses in the absence of a guarantee. At the very least, such a measure would help to protect vulnerable individuals who are likely to be less informed than a lender about the risks they are assuming.


The law has not yet adapted to recognise the emotional pressures which affect the quality of consent of guarantors in familial situations. Under the law as it currently stands, older guarantors of younger relatives’ loans face harsh consequences if their relatives are unable to repay their debts. Reforms need to be put in place to prevent or minimise the risk of such guarantors losing substantial assets such as the family home when a guarantee is called upon. The New South Wales Law Reform Commission is currently considering reforms to address the problems faced by third party guarantors.[20] It is to be hoped that this will be the first step towards legislation throughout Australia which will protect prospective guarantors, including older Australians, who experience a lack of real choice about risking their principal assets and sources of income.

[*] Juliet Cummins is the Co-Director of the Centre for Elder Law at the University of Western Sydney.The author would like to thank Professor Carolyn Sappideen for her help and advice in the writing of this© 2002 Juliet Cummins (text)© 2002 Jane Cafarella (cartoon)

[1] See, for example, Otto, Dianne, ‘A Barren Future? Equity’s Conscience and Women’s Inequality’[1992] MelbULawRw 19; , (1992) 18 MULR 808 at pp.815-23; Singh, Supriya, For Love Not Money: Women, Information and the Family Business, Consumer Advocacy and Financial Counselling Association of Victoria (Inc), Melbourne, 1995; Baron, Paula, ‘The Free Exercise of Her Will: Women and Emotionally Transmitted Debt,’ (1995) 13 Law in Context 23-56; Good Relations, High Risks: Financial Transactions Within Families and Between Friends, Report of the Expert Group on Financial Vulnerability (Commonwealth), February 1996, esp pp.28, 39-41; Fehlberg, Belinda, Sexually Transmitted Debt: Surety Experience and English Law, Clarendon Press, 1997; Fehlberg, Belinda, ‘Money and Marriage: Sexually Transmitted Debt in England,’ (1997) 11 International Journal of Law, Policy and the Family 320-43; Howell, Nicola, ‘Sexually Transmitted Debt: Where Emotion Meets the Law,’ (1998) 2(3) Consumer Rights Journal < crj/2_3a.htm> Mahalingham, Sue, ‘Deep and Meaningful: Dealing with Emotionally Transmitted Debt,’ (1999) 3(6) Consumer Rights Journal; Bailey, Misty, ‘Sexually Transmitted Debt: Criticisms and Prospects for Reform,’ (1999) 8 Auckland University LR 1001-32.

[2] Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, per Gaudron, McHugh, Gummow and Hayne JJ at para 22, p.404.

[3] In Australia in 1997–98, 90% of older couple households and 75% of older lone person households were owners without a mortgage: Australian Bureau of Statistics, Housing: Life-Cycle Groups, <!OpenDocument> . ‘Older’ is used in this document to refer to people over 65.

[4] Choi, Namkee G. and others, ‘Financial Exploitation of Elders: Analysis of Risk Factors Based on County Adult Protective Services Data,’ (1991) 10 Journal of Elder Abuse & Neglect 39 at 55.

[5] Fehlberg, Belinda, Sexually Transmitted Debt, above, ref 1, pp.14-15. See also the Expert Group on Family Financial Vulnerability, Good Relations, High Risks, p.6 and Howell, Nicola, above, ref 1.

[6] See, however, Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44; [2001] 3 WLR 1021 at 1046, 1059, where the House of Lords effectively required lenders to inform a borrower’s guarantor–wife of the borrower’s financial circumstances.

[7] For a good critique of the majority judgment in Garcia, see Hii, Su-King, ‘From Yerkey to Garcia: 60 Years on and Still as Confused as Ever!’ (1999) 7 Australian Property LJ 47-75.

[8] Bailey, Misty, above, ref 1, ‘Sexually Transmitted Debt’ at p 1025.

[9] Fehlberg, Belinda, ‘Money and Marriage’, above, ref 1 at p.331. See also Baron, Paula, above, ref 1, p.28.

[10] Thomson, Alan, ‘The Law of Contract’, in Ian Grigg-Spall and Paddy Ireland (eds), The Critical Lawyers’ Handbook, Pluto Press, London, 1992, p.71.

[11] See Bigwood, Rick, ‘Conscience and the Liberal Conception of Contract: Observing Basic Distinctions Part I,’ (2000) 16 JCL 1-36 at 1-8 (quotations from pp.1-2).

[12] See, for example, Trade Practices Act 1974 (Cth), ss.51AA, 51AB, 80 and 87, Consumer Credit Code, s.70, Contracts Review Act 1980 (NSW) ss.7 and 9 and equivalent State Acts. Likewise, doctrines such as undue influence, unconscionability, duress and mistake have been broadened judicially, particularly in cases involving relationship debt. See Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, CIBC Mortgages v Pitt [1993] UKHL 7; [1994] 1 AC 200, Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44; [2001] 3 WLR 1021.

[13] For an analysis of the problems of applying the traditional model of contract to sexually-transmitted debt, see Bailey, Misty, above, ref 1, pp.1024-28.

[14] Bigwood, Rick, ‘Conscience’, above, ref. 11, at pp.10-11.

[15] Fehlberg, Belinda, ‘Money and Marriage’, above, ref 1, p.331; Baron, Paula, above, ref 1, p.28; Bailey, Misty, above, ref 1, pp.1028-29.

[16] Fehlberg, Belinda, Sexually Transmitted Debt, above, ref 1, p.275.

[17] Bailey, Misty, above, ref 1, p.1031.

[18] See ‘Guaranteeing Someone Else’s Debts: Submission by the Centre for Elder Law, University of Western Sydney to the NSW Law Reform Commission,’ written and prepared by Juliet Cummins, 1999, <> .

[19] See Trebilcock, Michael J and Elliott, Stephen, ‘The Scope and Limits of Legal Paternalism’ in Peter Benson (ed.) The Theory of Contract Law: New Essays, Cambridge University Press, 2001, p.51.

[20] See New South Wales Law Reform Commission Issues Paper 17, Guaranteeing Someone Else’s Debts, Sydney, 2000.

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