No Risk, No Fun? Should Spouses be Advised before Committing to Guarantees? A Comparative Analysis

Mathias M. Siems

Research output: Contribution to journalArticlepeer-review

Abstract

The following paper will deal with the question of whether a spouse who grants a security for the business debts of the other spouse can escape liability because he or she has not been properly advised by the creditor. After an introduction into this topic (1), I will outline the legal position in English, Scots and German law (2). As for English and Scots Law, I will focus on the decisions of the House of Lords in Barclays Bank plc. v. O'Brien and Smith v. Bank of Scotland, and, as for German law, I will deal with the reasoning of a duty to advise and the decisions of the Bundesgerichtshof (German Supreme Court). In the second part of this essay the similarities and differences of these legal systems will be compared and interpreted (3). In particular, I will consider the practical results as well as the existing and lacking legal concepts of each legal system. In the last part I will expound my own opinion (4). In this context, it will be discussed whether the principles of good faith and culpa in contrahendo are sound and whether a duty to advise keeps the balance between the interests of guarantors and creditors. As a result, it is submitted that the answer to these questions is in the affirmative.
Original languageEnglish
Pages (from-to)509-28
JournalEuropean Review of Private Law
Volume10
Issue number4
Publication statusPublished - 2002

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