chapter
16 Pages

RECTIFICATION AND RESCISSION; 'OUTWITTED, DECEIVED AND DUPED' WOMEN AND A LITTLE 'SPECIAL TENDERNESS'

Since other chapters in this book focus upon the Barclays Bank v O'Brien5 scenario and have the space to do it justice, it will not be analysed in detail here. However, a brief reference to the equitable remedies of rectification and rescission, in particular, the setting aside of contracts for mistake, misrepresentation and undue influence, is pertinent and allows the drawing of parallels later. For some time, it appeared that equity would be the duped wife's champion when she was convinced to guarantee her husband's doomed business venture, often by way of a charge on the family home.v but recent cases have shown a clear preference for commercial interests over those of the duped. However, the earlier cases remain of interest for the statements and assumptions which they make about the women involved, and even the most recent judicial pronouncements contain echoes of such rhetoric. One statement, in Cresswell v Potter,7 which elaborates equity's ability to overturn transactions due to an inherent unfairness (undue influence and unconscionability are used fairly interchangeably in the cases), is that this will be possible '[wlhere a poor ignorant person entered into a disadvantageous transaction (for example, at an undervalue) without any independent legal advice'. Women appear to fit this definition rather well in even quite recent case law. The Cresswell case itself abounds with overt and implied statements about women's roles, class divisions as well as gender divisions, and displays the ease with which women are viewed as having victim status. In the judgment of Megarry J (who has already made a number of appearances in this book), being a telephonist was sufficient grounds on which to find the wife 'poor and ignorant', and the idea of a wife transferring property to her husband on divorce was so unusual as to arouse suspicion as to the validity of the transaction. However, in some circumstances, being poor, ignorant and entering into a highly disadvantageous transaction is not enough basis for equity to intervene at all, especially where the most important kind of third party rights, those of banks and other commercial interests, are involved. This is discussed elsewhere in this book. But an interesting comparison may be made with the defendant in Portman Building Society v Dusangh,8 who did satisfy the 'poor and ignorant' test in the eyes of the court, since he was elderly, illiterate and had a very low income. His taking out of a large loan to

fund his son's business venture was also clearly unwise. But, according to Simon Brown LJ, the fact that the building society had failed on several occasions to adhere to its own policy and safeguards as to ensuring that the defendant would be able to make the repayments was not material, since those safeguards exist for the building society's benefit rather than to protect the borrower from making an unwise commitment. Perhaps the result would have been different if the influence had been between husband and wife rather than son and father, since wives are still not viewed as entirely independent of thought or activity in recent judgments.