The Husband, the Bank, the Wife and Her Signature — the Sequel

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In Barclays Bank plc v O'Brien,' the House of Lords sought to resolve difficulties in the law applicable to disputes between creditors and surety wives.2 Typically, such cases involve a wife who, as a result of her husband's unfair pressure or misrepresentation, provides third party loan security (usually over the matrimonial home) to a creditor for her husband's business borrowings. Which of two 'innocent' victims (the wife or the creditor) should pay for the husband's misconduct? Post-O'Brien cases indicate that the wife remains the most likely candidate, particularly in Court of Appeal cases. The limited legal protection available to sureties evident in post-O'Brien cases is explored in this article. The legal analysis is supported by reference to the findings of empirical research conducted in the United Kingdom between 1992 and 1994, involving interviews with surety wives who in the main were experiencing problems with their securities.3 The central theme is that post-O'Brien, the courts continue to approach security transactions from the perspective of creditors. A number of sub-themes derive from this central theme. First, many of the practical problems faced by sureties remain unaddressed. Secondly, popular notions of the partnership of marriage and that 'couples share' encourage the continuance of an underlying judicial assumption that surety wives 'benefit' from providing security. Thirdly and conversely, liberal notions of freedom of contract and selfresponsibility encourage the view that, ultimately, sureties have to look after themselves and that creditors are not responsible for the 'independent advice' received by sureties. The deployment of these second and third sub-themes depends on how the interests of creditors may best be served. Creditor-sympathetic outcomes are, however, inevitable given the policy priority