The Case of Barclays Bank and O’Brien 1994 in the Development of Women's Rights

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The Case of Barclays Bank and O’Brien 1994 in the Development of Women's Rights

CASE COMMENTARY

BARCLAYS BANK V O’BRIEN (1994)

Traditionally, society has regarded women as the inferior of the two

sexes. It was believed that women should be ‘kept’ by their husbands,

who being the chief bread maker should look after his wife and their

finances. Up until recently women were not afforded special rights in

equity that are available to them today.

The case of Barclays Bank and O’Brien 1994 has been significant in

establishing rights for wives who have been unduly influenced by their

husbands into risking their property for the debts of their husbands.

Lord Browne-Wilkinson’s judgement has been subject to much criticism

regarding the extent to which wives and near-wives should be protected

by the law from their husbands influence. Two schools of thought have

emerged from the case; one follows that, no special protection should

be afforded to marry women, the second, called the ‘special equity

theory’, considers that special rights should be available to those

where the relationship between the debtor (husband), and surety

(wife), is such that the surety relies upon the debtor. The debtor’s

influence over the surety is a natural feature of the relationship.

Lord Browne-Wilkinson recognised that even in the modern day women

still depends upon their husbands to deal with financial matters. The

leading authority on special rights, which should be given to women

prior to O’Brien, was Turnbull and Duval 1902. His lordship

criticised the judgement in this case and described the basis on which

the case was decided as ‘obscure’. Sc...

... middle of paper ...

...jected to by their

husbands or partners.

In retrospect, the case of Barclays Bank and O’Brien and Lord

Browne-Wilkinson’s’ judgement has excelled women’s rights

significantly compared with those which were available to them prior

to the hearing of the case. Although there are various discrepancies

between the ideals suggested by His Lordship and actual practice,

there has been much appraisal for it in developing women’s collective

legal rights.

REFERENCES

==========

* BOTTOMLEY, Anne, Women, Family and Property.

* CONWAY, Maggie, Equity’ Darling.

* GREER, Sarah, PALOWSKI, Mark, Constructive notice and independent

legal advice: A study of lending institution practice.

* MACKENZIE, Robin, Beauty and the Beastly Bank: What should

equity’s fairy wand do? Ch 8 ed. Bottomley.

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