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Etridge Case Critique: Rosemary Auchmuty's Feminist Judgment, A Better Alternative - Essay Example

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ETRIDGE CASE CRITIQUE: ROSEMARY AUCHMUTY’S FEMINIST JUDGMENT, A BETTER ALTERNATIVE? Contracts1 are constituted upon the meeting of the minds between individuals or entities where one party offers to give or render service and the other accepts are bound by their promises…
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Download file to see previous pages This equally connotes that the parties have acquiesced with the provisions of the agreement knowingly when they affixed their signatures thereto. It can be reasonably concluded that they have read and understood the terms of the agreement and bound themselves to perform their obligations. Hence, the agreement becomes the law between the parties and operates to define their obligations and liabilities. It is therefore essential for the parties to establish that they have the legal capacity and competence to enter into a contract and to ensure that their consent was given freely without any undue influence, violence, duress or threat against their persons and sans any allegations of fraud or misrepresentation. It cannot be denied however that in contract negotiations, one party may have an advantage over the other—would this constitute as a ground to nullify the agreement? A concrete example of negotiating at a dominant position would be banks when it offers loan packages to jump start a business, increase capitalization, purchase cars, family homes and other personal amenities—the banks are at liberty to impose the terms of the loans, to accept the security offered and to further require spousal surety or “surety wife”.2 For loan transactions procured by husbands, together with their wives secured by family homes, what then is the impact of vice of consent upon the wives—does the allegation of impropriety nullify the transaction? Would it be proper and equitable then to confer more rights upon the weaker or vulnerable party—“surety wife”—as opposed to the more dominant party—banks? These are the issues raised in the Etridge consolidated cases presented for critical analysis, it was alleged that the wives—the weak and vulnerable parties submit to the will of their husbands as undue influence is exerted upon them—were not fully cognizant of the nature of the transactions entered into by their spouses, given inadequate advice and if only the gravity of the situation were explained to them, they could not have acted as sureties much more offer their family homes as security to guaranty the loans procured by their spouses to finance their business undertakings. In the consolidated Eldridge decision, the House of Lords (HL) sustained the position of some of the wives exposed to undue influence however contrary dispositions were rendered against the Etridge couple and two other couples—Gill and Coleman. This gave rise to debates and spurred legal and feminists scholars, particularly the esteemed Rosemary Auchmuty, to pursue alternative judgments and it is the task of this paper to examine whether the feminist ruling advanced is fair, just and equitable. Indeed, women are portrayed as weak, vulnerable and incapable of independent thinking such that they would succumb to pressure from their husbands and would even sell or convey by way of surety their interest in the family home to please the husband if not maintain a blissful relationship. This infirmity has been raised by wives to stop banks from foreclosing the family home in case of default in the amortization. However, as society is overzealous in protecting the rights of women, particularly the wives, it is posited that it may have deleterious effect to the public weal and interest. It is argued that public interest pitted against individual rights far outweighs the rights of wives. To afford wives greater protection would be discriminatory and ...Download file to see next pages Read More
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