Relationship Debt and the Aged

See, for example, Otto Dianne , ‘A Barren Future? Equity's Conscience and Women's Inequality’, (1992) 18 MULR 808 at pp.815–23; Singh Supriya , For Love Not Money: Women, Information and the Family Business, Consumer Advocacy and Financial Counselling Association of Victoria (Inc), Melbourne, 1995; Baron Paula , ‘The Free Exercise of Her Will: Women and Emotionally Transmitted Debt,’ (1995) 13 Law in Context 23–56; Good Relations, High Risks: Financial Transactions Within Families and Between Friends, Report of the Expert Group on Financial Vulnerability (Commonwealth), February 1996, esp pp.28, 39–41; Fehlberg Belinda , Sexually Transmitted Debt: Surety Experience and English Law, Clarendon Press, 1997; Fehlberg Belinda , ‘Money and Marriage: Sexually Transmitted Debt in England,’ (1997) 11 International Journal of Law, Policy and the Family 320–43; Howell Nicola , ‘Sexually Transmitted Debt: Where Emotion Meets the Law,’ (1998) 2(3) Consumer Rights Journal <http://home.vicnet.net.au/∼fcrc/crj/2_3a.htm>; Mahalingham Sue , ‘Deep and Meaningful: Dealing with Emotionally Transmitted Debt,’ (1999) 3(6) Consumer Rights Journal; Bailey Misty , ‘Sexually Transmitted Debt: Criticisms and Prospects for Reform,’ (1999) 8 Auckland University LR 1001–32.

Garcia v National Australia Bank Ltd (1998) 194 CLR 395, per Gaudron, McHugh, Gummow and Hayne JJ at para 22, p.404.

In Australia in 1997–98, 90% of older couple households and 75% of older lone person households were owners without a mortgage: Australian Bureau of Statistics, Housing: Life-Cycle Groups, <http://www.abs.gov.au/ausstats/abs%40.nsf/94713ad445ff1425ca25682000192af2/dbdf30ef240e8486ca2569de00245786!OpenDocument>. ‘Older’ is used in this document to refer to people over 65.

Choi, Namkee G. and others, ‘Financial Exploitation of Elders: Analysis of Risk Factors Based on County Adult Protective Services Data,’ (1991) 10 Journal of Elder Abuse & Neglect 39 at 55.

Fehlberg Belinda , Sexually Transmitted Debt, above, ref 1, pp.14–15. See also the Expert Group on Family Financial Vulnerability, Good Relations, High Risks, p.6 and Howell Nicola , above, ref 1.

See, however, Royal Bank of Scotland plc v Etridge (No 2) [2001] 3 WLR 1021 at 1046, 1059, where the House of Lords effectively required lenders to inform a borrower's guarantor–wife of the borrower's financial circumstances.

For a good critique of the majority judgment in Garcia, see Hii Su-King , ‘From Yerkey to Garcia: 60 Years on and Still as Confused as Ever!’ (1999) 7 Australian Property LJ 47–75.

Bailey Misty , above, ref 1, ‘Sexually Transmitted Debt’ at p 1025.

Fehlberg Belinda , ‘Money and Marriage’, above, ref 1 at p.331. See also Baron Paula , above, ref 1, p.28.

Thomson Alan , ‘The Law of Contract’, in Grigg-Spall Ian and Ireland Paddy (eds), The Critical Lawyers' Handbook, Pluto Press, London, 1992, p.71.

See Bigwood Rick , ‘Conscience and the Liberal Conception of Contract: Observing Basic Distinctions Part I,’ (2000) 16 JCL 1–36 at 1–8 (quotations from pp.1–2).

See, for example, Trade Practices Act 1974 (Cth), ss.51AA, 51AB, 80 and 87, Consumer Credit Code, s.70, Contracts Review Act 1980 (NSW) ss.7 and 9 and equivalent State Acts. Likewise, doctrines such as undue influence, unconscionability, duress and mistake have been broadened judicially, particularly in cases involving relationship debt. See Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, CIBC Mortgages v Pitt [1994] 1 AC 200, Royal Bank of Scotland plc v Etridge (No 2) [2001] 3 WLR 1021.

For an analysis of the problems of applying the traditional model of contract to sexually-transmitted debt, see Bailey Misty , above, ref 1, pp.1024–28.

Bigwood Rick , ‘Conscience’, above, ref. 11, at pp.10–11.

Fehlberg Belinda , ‘Money and Marriage’, above, ref 1, p.331; Baron Paula , above, ref 1, p.28; Bailey Misty , above, ref 1, pp.1028–29.

Fehlberg Belinda , Sexually Transmitted Debt, above, ref 1, p.275.

Bailey Misty , above, ref 1, p.1031.

See ‘Guaranteeing Someone Else's Debts: Submission by the Centre for Elder Law, University of Western Sydney to the NSW Law Reform Commission,’ written and prepared by Juliet Cummins, 1999, <http://www.uws.edu.au/law/elderlaw/submission>.

See Trebilcock Michael J and Elliott Stephen , ‘The Scope and Limits of Legal Paternalism’ in Benson Peter (ed.) The Theory of Contract Law: New Essays, Cambridge University Press, 2001, p.51.

See New South Wales Law Reform Commission Issues Paper 17, Guaranteeing Someone Else's Debts, Sydney, 2000.