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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