From Mythical Equities to Substantive Doctrines — Yerkey in the Shadow of Notice and Unconscionability
(1999) 14 Journal of Contract Law 73-107
34 Pages Posted: 17 Apr 2019
Date Written: March 28, 1999
Abstract
The extent to which a surety can impeach a security sought to be enforced by a creditor is an issue of no mean significance. In this context, three important doctrines have occupied a great many pages in law reports across the Commonwealth, particularly in recent years. These are, respectively, the so-called 'special equity' for wives as enunciated in the judgment of Dixon J in the Australian High Court decision of Yerkey v Jones; the doctrine of constructive notice as embodied in the House of Lords decision in Barclays Bank plc v O’Brien; and the even broader doctrine of unconscionability as set out in the seminal Australian High Court decision of Commercial Bank of Australia Ltd v Amadio. The linkages amongst these three doctrines are by no means clear and, as we shall see, some conflict has on occasion at least been perceived.
Keywords: Contract, Guarantee, Undue Influence, Unconscionability, Security, Constructive Notice
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