3. Guarantees in historical and comparative perspective
Updates and background for this project (Digest)
3.1 This chapter outlines some of the diverse approaches that various legal systems have taken to the problems presented by guarantees. These approaches range from placing a ban on vulnerable people entering guarantees and placing particular assets beyond the reach of lenders who seek to enforce a guarantee; to more holistic attempts at ensuring equality of bargaining power or fair dealing on the part of lenders.
BAN ON WOMEN AS SURETIES
3.2 Roman and some later civilian systems of law have dealt with the problem of guarantees by preventing women from entering them at all.
Roman law
3.3 The Roman Senate enacted the Senatus Consultum Velleianum (“SCV”) in the period 41CE-65CE. The SCV provided that women could not guarantee anyone’s debts or undertake a primary obligation for the benefit of another. This decree went further than earlier imperial edicts from the time of the emperors Augustus (27 BCE-14 CE) and Claudius (41CE-54CE) which simply prohibited women from acting as guarantors for their husbands’ debts. The policy underlying the SCV is controversial.1 Near contemporary reasons given for it include:
- imposing legal incapacity on women, while customary in many spheres of Roman life, was particularly necessary in situations where a woman could risk her entire private property;
- it was considered unjust for women to be liable for performing what were considered to the “duties of men”;
- women were seen as subject to weakness and infirmity and, therefore, deserved the protection of the edict; and
- women incur obligations (such as guarantees) more readily than they would if they were simply giving their property away (which they were still permitted to do in certain circumstances under Roman law).2
3.4 Some commentators have suggested that the protections were necessary because of the recklessness displayed by some women as guarantors following the abolition of agnatic guardianship in the first half of the first century.3 Women who had been subject to agnatic guardianship were previously unable to deal with property without the assent of their agnatic (male) guardian, in practice usually a brother or uncle.4
3.5 Some contemporary records have suggested that preventing women from guaranteeing debts effectively excluded them from the social networking that was part and parcel of participation in business activities among Roman men.5
3.6 The developing emancipation and business experience of women made the SCV increasingly impractical and a teleological interpretation was devised to get around its terms.6 Buckland has summarised the exceptions that were developed by the jurists:
It did not apply if the creditor was a minor and the principal debtor was insolvent, or if it was to save the father from execution of a judgment, or if, though she appeared as surety, it was really the woman’s own affair, or if it was to provide a dos for her daughter, or by a rescript of Pius, if she had deceived the creditor.7
3.7 The Emperor Justinian decreed that a guarantee was binding if, after two years, the woman confirmed it, or was paid for undertaking it. However, it became sufficient for the woman merely to acknowledge payment in the instrument itself, albeit before three witnesses.8 However, Justinian confirmed an absolute ban on a woman acting as guarantor for her husband except where the money received from the transaction was spent for her benefit.9 At around this time, it was also possible for a woman to renounce the benefits of the SCV, at least in cases where she was acting as tutor to her children or grandchildren, following the death of her husband.10
Later development
3.8 The Senatus Consultum Velleianum had largely disappeared from civil law and mixed law jurisdictions by the beginning of the 20th century.11 However, it survived in South Africa until it was abolished in 1971.12 This led to the following from a South African judge in 1942:
One of the incongruities of this inconsequent age is the fact that women, while enjoying full rights of citizenship, including that of making or marring policies of the State as effectively as any male, are able in their private affairs to invoke a defence based on their innate fecklessness and incapacity and so avoid liability in respect of obligations which they have deliberately assumed. We have to administer the law as we find it. On the other hand our law in this respect is a recognised anomaly, a fossil left over from a dispensation in which it was deemed reprehensible in a woman to engage in anything so masculine as the undertaking of suretyship. We should not be astute, therefore, to extend the scope of the legal benefits by analogy or to restrict the operation of statutes designed to curtail them.13
HUMAN RIGHTS AND EQUAL OPPORTUNITY
3.9 Some legal systems have dealt with the problem of guarantees by interpreting provisions of their law in light of overriding principles of fairness and human rights. Such approaches are illustrated by:
- the interpretation, in Germany, of the civil law in light of the Basic Law14 which guarantees autonomy of private individuals; and
- the use of the Equal Credit Opportunity Act in the United States.
Effect of the German Basic Law
3.10 Traditionally, under the German civil law, the courts would not interfere in a guarantee even where it was burdensome and there was an inequality of bargaining power between the parties. The law relating to guarantees is set out in the Civil Code15 and derives from Roman law antecedents. The Civil Code also contains a general provision, §138, which invalidates contracts that are “against good morals”:16
(1) A legal transaction which violates good morals is void.
(2) In particular, a legal transaction is void by which someone through exploitation of the predicament, inexperience, lack of judgment or significant weakness of will of another person, causes to be promised or granted to himself or a third party in return for a performance economic advantages which are conspicuously disproportionate to the performance.
3.11 In Germany, laws are subject to the Federal Constitutional Court’s interpretation of the Basic Law, which includes a Bill of Rights. This Bill of Rights constitutes “a system of basic values permeating the [German] legal system as a whole”. This means that “the entire body of private law must be interpreted in the spirit of fundamental rights”. The courts initially did not invoke § 138 because they considered that a guarantee imposed obligations only on the guarantor and was, therefore, not subject to “control in terms of overriding standards of justice and fairness”. In 1993, the Federal Constitutional Court relieved a guarantor from full liability, holding that the courts, when applying § 138, should have regard to the “basic right guarantee of private autonomy” enshrined in the Basic Law. It also stated that courts were bound to control the content of contracts which disclosed a “structural inferiority of one of the contracting parties” and where “the consequences of the contract are unusually burdensome for the inferior contracting party”.17
3.12 The Federal Supreme Court now reviews guarantees entered into by close family members of borrowers under § 138. Despite this, close relatives of borrowers may still guarantee risky loans. Guarantees are not regarded as void merely because guarantors have accepted what is, in their case, a considerable burden.18 Close relatives are protected if, in addition to being responsible for a large debt, they are also subject to additional burdens which lead to an “intolerable imbalance” between the parties to the contract. Such burdens can be the result of a lender exploiting a guarantor’s inexperience in business or exploiting the borrower’s influence over the guarantor19 - that is, their obligations “cannot be said to be the result of an act of free self-determination”.20
3.13 There are a number of categories of close relative which may give rise to a “presumption of an intolerable imbalance between creditor and surety” which could lead a court to declare a guarantee void under § 138. The presumption can arise with respect to a child or spouse of the borrower in circumstances where:21
- he or she does not have an “adequate degree of business experience”;
- the borrower has induced him or her to undertake the “ruinous obligation”; or
- the lender has influenced the guarantor’s will by, for example, playing down the significance or risks of the guarantee.22
For example, a lender’s claim could be impaired by a borrower inducing a close family member to undertake a guarantee. That is, if the lender “knew both of the child’s financial dependence on [his or her] parent and of the ruinous character of the contract of suretyship” or “if these circumstances would have become apparent as a result of a proper examination of the surety’s financial standing”.23 However, in the case of spouses, the courts may find that a spouse has an economic interest even if the credit supplied to the other spouse only indirectly contributes to the maintenance of the family.24 This, therefore, will not affect a spouse’s guarantee even if enforcing it would prove ruinous for the spouse.
United States Equal Credit Opportunity Act
3.14 In the United States, the Equal Credit Opportunity Act (“ECOA”) has some relevance where spouses act as guarantors.
3.15 The US Congress passed the ECOA25 in 1974. Among other things, it makes it unlawful for any lender to discriminate in the provision of credit on the basis of sex or marital status.26 Initially, it aimed to protect married women from discriminatory credit practices.27 Requiring an otherwise creditworthy individual to get her husband’s signature was seen as discriminatory because an unmarried applicant who was creditworthy would not be required to provide a spouse’s signature.28 The Act, therefore, intended that all applicants for loans should be able to establish an individual credit rating. To this end it also expressly prevented lenders from asking questions aimed at discovering an applicant’s marital status.
3.16 The provisions apply to all contexts in which guarantees may be sought, whether or not they are primarily for personal, family or household purposes, business or commercial loans and whether or not they are made available by financial institutions or otherwise.29 It has been suggested that the potential for lenders to violate the ECOA in the context of commercial lending is “significant”.30 However, the Act also states that certain activities do not constitute discrimination for the purposes of the ECOA. For example, it is not discrimination for a lender to:
- ask about marital status in order to ascertain the lender’s rights and remedies against the borrower and not to discriminate in determining whether he or she is creditworthy;31 or
- request the signature of both parties to a marriage for the purpose of creating a valid lien, passing clear title, waiving inchoate rights to property or assigning earnings, provided marital status is not taken into account in evaluating creditworthiness.32
Regulation B
3.17 The Board of Governors of the Federal Reserve System may make regulations to carry out the ECOA’s purposes.33 Regulation B provides particular protection for spousal guarantors. It provides:
a creditor shall not require the signature of an applicant’s spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness for the amount and terms of the credit requested.34
An “applicant” is “any person who requests... an extension of credit from a creditor, and includes any person who is or may become contractually liable regarding an extension of credit” and includes “guarantors, sureties, endorsers, and similar parties”.35
3.18 The ECOA and Regulation B also offer protection when any changes are made to the original agreement between lender and borrower so that, when a credit agreement is renewed or extended, the lender must again evaluate the borrower’s individual creditworthiness and assess whether a guarantee is warranted.36
Development
3.19 The ECOA originally sought to prevent lenders from requiring that a husband be a co-signatory or guarantor to his wife’s loan where she was otherwise creditworthy. However, now both husbands and wives are using a breach of the Act as a defence to the enforcement of guarantees.37
3.20 Common examples of breaches of the ECOA include:
- where a lender requires a husband to get his wife’s signature even though the husband is individually creditworthy; and
- where there is a loan to a company and the lender requires not only the husband (as a director of the company) to guarantee the loan, but the wife as well.38
3.21 This unexpected application of the provisions of the ECOA has raised a number of questions, for example, as to whether:
- husbands can claim to have been discriminated against by lenders requiring that their wives act as guarantors; and
- wives can, therefore, seek to avoid their obligations as guarantors.39
The application of the ECOA in these circumstances is now an unsettled area of the law.
Affirmative defence or counterclaim
3.22 Much currently turns on the interpretation of the section of the ECOA which allows courts to “grant such equitable and declaratory relief as is necessary to enforce the requirement imposed under [the ECOA requirements]”.40 If used as an affirmative defence, the provisions can prevent a lender obtaining summary judgment on the guarantee. However, it has also been argued that these provisions can only be used by a guarantor to establish a “compulsory counterclaim”. In the US legal system, this means that a guarantor’s ECOA claim would have to be pursued separately to the lender’s application for summary judgment.41 This puts a guarantor at a significant strategic disadvantage in litigation if judgment is entered against him or her in the first proceeding.42 The question, therefore, becomes whether the ECOA provides a defence to enforcement actions or whether a counterclaim is a spouse’s only available form of relief.43
3.23 Some courts have used this section to relieve spouses from any obligation as guarantors,44 while others have refused to offer such relief because the remedy has not been specifically provided for or is considered too drastic.45
3.24 One of the chief consequences of this provision, in view of the uncertainty in the law, is that prudent lenders, when deciding to grant credit or revise an existing arrangement, must assess the creditworthiness of the business standing alone. If the business is individually creditworthy, then the lender will not need a guarantee from a spouse. In any event, even if the lender determines that the borrower is not individually creditworthy under the ECOA, the lender cannot require that the spouse be guarantor.46
3.25 It has also been suggested that lenders should ensure that spouses who guarantee loans:
sign written acknowledgments evidencing that the spousal guaranty was provided voluntarily, was not required by the lender, and that the guarantors were advised by the lender of the protections afforded them by the ECOA.47
One commentator has suggested that:
Such evidence is cheap insurance against future claims in the event the guarantor is ever called on to perform.48
3.26 In the United States, the credit industry has argued that the costs arising from compliance with the ECOA will be passed on to consumers in the form of higher interest rates, higher charges or more stringent credit standards.49 The Law Reform Commission has received submissions to similar effect in response to a question whether all third party guarantees should be prohibited.50
3.27 There are a number of responses to such claims, including the observation that costs would only be placed completely on borrowers if supply were “perfectly elastic”. A review of empirical evidence suggests that supply in the credit market is not perfectly elastic.51 It has also been suggested that, in an already heavily regulated sector of the economy, the enforcement of a “singular regulatory act” is unlikely to have the negative effects predicted by some:
Credit transactions occur within a competitive market. If a huge pool of credit-seeking applicants are left without the ability to obtain credit, the market will compensate for this deficiency either by introducing alternative means of obtaining credit, or by the incursion of less “established” financial institutions profiting from a readily available group of customers. In either case, the possibility of creditors raising the standards of creditworthiness to the point of pricing themselves out of the market is remote.52
LIMITING THE USE OF PARTICULAR PROPERTY AS SECURITY
3.28 In some overseas jurisdictions, there are laws known as “homestead” laws. These laws impose limits on the extent to which residential property can be used as security for debts, for example, by protecting all or part of its value. The laws vary from place to place and have been enacted for many different reasons. They generally offer limited, incidental protection to guarantors.53
3.29 Homestead laws had their origins in the mid 19th century in North America and were intended to prevent lenders using debtors’ land to satisfy debts. The Republic of Texas enacted the first homestead law in 1839 in an attempt to encourage debtors fleeing the United States to settle there.54
3.30 While some homestead laws still apply to all owners of “homestead” property, other schemes only apply where family members or spouses also live in the property. Where the “homestead” must also be occupied by a spouse to be eligible for protection, a distinction can be drawn between schemes that protect only spouses who have no other property interest in the homestead (“non-owning” spouses) and those that also protect spouses who have a real interest in the homestead, for example, as joint tenants or tenants-in-common. Some of these latter schemes are limited to situations where the security over the property has been entered without the consent of the other spouse.
3.31 Examples of the different types of homestead laws are found in the United States, Canada and New Zealand. There is also an example, of historical interest only, in New South Wales. Each of these examples would have limited, and only incidental, application to situations where family members or friends have guaranteed loans.
United States homestead laws
3.32 Every State in the United States has laws that protect some of the assets of debtors from claims by lenders and the majority of them have laws that offer some protection to “homestead” properties.55 The homestead exemptions are usually available for properties up to a certain value and the limits may vary depending on whether the debtor is part of a family, single, a veteran or elderly.56 Most exemptions could conceivably apply to guarantors who have become responsible for the debts of another.
3.33 A law and economics analysis of the different regimes has suggested that homestead laws may, in fact, not be a response to a real problem, noting that they “restrict credit markets in the absence of a well-defined market failure to which they would be a suitable response”. This analysis concluded that the “best predictor of current levels of exemptions is historical levels of exemptions”.57 The historical reasons for offering the protection have not been to protect the property interests of guarantors but have rather been to:
- secure the family “which in turn benefits the community to the extent that such security prevents pauperism and provides the members of the family with some measure of stability and independence”;58
- encourage home ownership;59
- protect the elderly and disabled;60 and
- attract settlers to “areas in which the home is accorded maximum protection”.61
Kansas
3.34 The State of Kansas protects the “homestead” against enforcement actions by lenders in a reasonably comprehensive manner. The relevant provisions state:
A homestead ... occupied as a residence by the owner or by the family of the owner, or by both the owner and family thereof ... shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists.62
This provision will protect residential property owned by any person who guarantees another’s debts. More specifically, property held jointly, for example, by a husband and wife, is also covered by the exemption.63
3.35 Kansas has had provisions of this sort since its foundation when the essential elements were included in its Constitution.64 Commentators have observed that “with few exceptions, the courts have guarded its protections zealously”.65 The Supreme Court of Kansas once stated:
The preservation of the homestead is, under the policy of our law, considered more important than the payment of debts.66
Texas
3.36 The State of Texas provides a similar level of protection to owners of a homestead against the claims of lenders. The provisions are also backed up by constitutional protections, which include some far-reaching and complex provisions regarding the extension of credit.67 Amendments made in 1983 now protect the whole value of a homestead property,68 subject to certain restrictions in land area, and apply whether the owner resides in the property alone or with a family.69 A homestead property is automatically eligible for protection.
3.37 The courts of Texas have construed the homestead provisions liberally in favour of debtors. The United States Court of Appeals observed in 1992:
Because homesteads are favourites of the law, we must give a liberal construction to the constitutional and statutory provisions that protect homestead exemptions. ... Indeed, we must uphold and enforce the Texas homestead laws even though in so doing we might unwittingly “assist a dishonest debtor in wrongfully defeating his creditor.”70
So, for example, while the initial burden to establish the homestead character of a property rests on the individual who seeks the protection, this burden is considered “a short hurdle” so that, in most cases, “mere evidence of ‘overt acts of homestead usage’” is sufficient to discharge the burden.71
Massachusetts
3.38 Massachusetts provides an example of a homestead scheme that may also offer some protection to guarantors but to a more limited extent than that offered by Kansas.
3.39 The Massachusetts homestead provisions, subject to certain exceptions, protect a homestead estate against actions by lenders only to the extent of $500,000. The owner must occupy the homestead as a principal residence either solely or as part of a family. The owner can be either a sole owner or a joint owner.72 However, in order to qualify for the homestead estate protections, a property must be designated on the conveyance at purchase or, after purchase, duly declared and recorded in the registry of deeds.73
3.40 There is little evidence of the use of the homestead protection in Massachusetts. Some commentators have suggested this is because most people were unaware of the notification requirements and had not taken advantage of them.74 The provisions themselves have also been subject to considerable criticism for their poor drafting and conflicting provisions.75
Canadian homestead laws
3.41 The Canadian homestead laws have a slightly different focus compared with their United States counterparts. The Canadian laws are more concerned with protecting the interests of the “non-owning” spouse in the residence when it is owned by the other spouse. So, for example, Saskatchewan and Alberta both offer a level of protection to a “non-owning spouse” when a property has been occupied by both spouses as their family home.76 An “owning spouse” cannot deal with a homestead property without the consent of the non-owning spouse.77
3.42 The laws effectively exclude properties which both partners own, for example, as joint tenants or tenants-in-common, by deeming consent when both parties sign the relevant transaction documents.78 The laws, therefore, do not apply to situations where one spouse guarantees the debts of the other.
3.43 The Alberta Law Reform Institute has observed that the requirement of consent from the non-owning spouse is necessary to Alberta’s provisions for dower life estates whereby the non-owning spouse is entitled to a life interest in the homestead upon the death of the owning spouse:
The promise of a dower life interest is less valuable if the home can be sold, leased or mortgaged by the owner without the consent of the other spouse.79
New Zealand homestead laws
3.44 The Joint Family Home Act 1964 (NZ) allows for lawful spouses to register a home as a “joint family home”. Where one spouse originally owns the home, registration establishes a joint tenancy80 so that the “non-owning” spouse gets a property interest where one did not exist previously.
3.45 Registration offers a definite protection against certain claims up to a specified sum, currently NZ$103,00081 and allows lenders to apply to the court to order a sale or mortgage to make the equity in the home above the specified sum available to lenders.82
3.46 However, the Act only offers limited protection in that it allows the property to be used as security so long as both parties enter into the agreement.83 Registration, therefore, only protects the “joint family home” from unsecured claims up to the specified sum. It does not affect the rights of secured creditors.
3.47 The New Zealand Law Commission has observed that the practical effect of this arrangement is that the protection is largely confined to “consumer bankruptcies”.84 This essentially renders the provisions useless from the point of view of the “guaranteeing” spouse. Fehlberg has observed:
To offer effective protection, the Act would need to preclude creditor reliance on all charges given even with the consent of both spouses and would need to be extended to cover all owner-occupiers (not just spouses).85
The New Zealand Law Commission also mooted, but ultimately rejected, the idea of replacing the current provisions in the Joint Family Home Act 1964 (NZ) with a blanket protection of a bankrupt’s principal dwelling house.86
3.48 There is at least one instance of the protection operating where a spouse guaranteed a debt owed by a family company,87 although the case did not raise any questions of unfairness in the circumstances.
New South Wales homestead laws
3.49 Between 1895 and 1989, a scheme existed in New South Wales which offered homestead protection to certain occupiers of Crown land holdings. The final form of this scheme was contained in the Crown Lands Consolidation Act 1913 (NSW).88 The relevant provisions allowed the owner of a homestead selection, homestead farm, suburban holding, Crown-lease or lease within an irrigation area89 to obtain protection by registering an instrument in the “approved form”. The protection ensured that the homestead would not be sold under any writ of execution, would not be taken into account on bankruptcy90 and could “not in any other way be taken from the owner thereof for the satisfaction of any debt or liability under process or constraint of law”.91 The relevant section also preserved any liabilities entered into before registration of the holding as well as liability for any rates or taxes.
3.50 The provisions were originally part of a set of measures enacted in 1895 following a period of financial and natural difficulties in New South Wales which saw vast tracts of land end up unoccupied or in the hands of financial institutions. The measures were intended to encourage occupancy and cultivation of the land.92
3.51 The framework for this scheme was still in place in the 1980s when amendments were being made to fees chargeable in relation to the prescribed forms under the Crown Lands Consolidation Act 1913 (NSW).93 However, there would appear to be no reported cases dealing with these provisions. It is possible that the provisions were not widely known and that the registration requirements may have discouraged applicants.
REGULATING TRANSACTIONS
3.52 Another way in which legal systems have dealt with guarantees has been to regulate certain acts and practices in relation to contracts, including, in some cases, particular terms in contracts.94 This approach can be seen in the European Community Directives of the European Union and the United States Trade Commission’s Regulations. An incidental example can also be found in the homestead laws of some Canadian provinces.
European Community Directives
3.53 There are a number of European Community Directives that can be identified as part of a general trend in the European Union towards “increased consumer protection”.95 The scope of some of these Directives arguably has some bearing on the validity of guarantees, although none of them deal with guarantees in direct terms.
3.54 The Directives provide a minimum standard on which the member States of the European Union must base their implementing legislation. Action may be taken against member States who do not implement the minimum standards contained in the Directives.
3.55 Three European Community Directives are considered in the following paragraphs:
- Directive on Unfair Terms in Consumer Contracts;96
- Directive on Consumer Credit;97 and
- Directive for the Protection of consumers in respect of contracts negotiated away from business premises.98
Each directive only protects participants in consumer transactions.
Unfair terms in consumer contracts
3.56 The Directive on Unfair Terms in Consumer Contracts was promulgated in 1993. It aims to do two things:
- render particular unfair terms non-binding on consumers on a case by case basis;99 and
- prevent continued use of particular unfair terms in consumer contracts.100
3.57 The Directive applies to unfair terms in contracts concluded between sellers or suppliers and consumers.101 Article 3(1) of the Directive provides:
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
3.58 The Directive identifies terms in standard contracts as being examples of terms that have not been individually negotiated.102 The Directive also requires that, where a contract is in writing, the “terms must always be drafted in plain intelligible language”.103
3.59 The courts, in determining whether a term is unfair, must have regard to “all the other terms of the contract or of another contract on which it is dependent”104 and, where there is doubt as to the meaning of a term “the interpretation most favourable to the consumer shall prevail”.105
3.60 The Directive has been implemented in member states of the European Union, including Germany and the United Kingdom.
3.61 Germany has implemented article 3 of the Directive as follows:
Provisions in general conditions of business are ineffective if they unreasonably dsadvantage the user’s contracting partner in a manner contrary to the requirements of good faith.106
3.62 The 9th Division of the Federal Supreme Court has applied this provision to all moneys clauses - referred to as “comprehensive suretyship agreements”. Such clauses have been found to be contrary to the precepts of good faith.107 This means that the Federal Supreme Court may now review all moneys clauses in guarantees.
3.63 The United Kingdom has implemented the Directive as follows:
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.108
3.64 The courts have not yet applied the Regulations to a case involving a guarantee. Some commentators have suggested that the Regulations may not, in fact, apply to guarantees because there must be a contract for the provision of goods and services by the supplier to the consumer.109 This is a drafting issue which has not arisen, for example, in the case of the German implementation of the Directive which is not limited to situations where the supply is to the consumer.110
Consumer credit
3.65 The Directive on Consumer Credit, which applies to credit agreements, seeks to protect consumers. The relevant terms are defined in article 1(2):
Article 2(1)(f) limits the Directive to credit agreements involving amounts between €200 and €20,000.
3.66 The Directive also allows member States to require that further terms be included in credit agreements, for example, a cooling off period.111 So, in Germany, the Consumer Credit Law provides that the credit contract becomes effective only if the borrower does not cancel it within one week of receiving a notice from the lender informing the borrower of his or her right to withdraw from the contract and the procedure to be followed in doing so.112
3.67 There has been some dispute as to whether the Directive can in fact be applied to guarantees. These arguments were discussed in a case before the European Court of Justice. The case involved a guarantor who was not acting in the course of his trade or profession and who had not been informed of his alleged right of cancellation under the German Consumer Credit Law. The European Court of Justice found that the Directive did not apply to guarantees either expressly or by implication.113 The Court noted, in particular, that the Directive seeks to protect borrowers by ensuring the provision of certain information and that there are no provisions for protecting guarantors whose primary concern is the solvency of the borrower.114
3.68 The Directive would, therefore, seem to be confined to credit agreements between lenders and borrowers. The European Commission has proposed extending some of the Directive’s information provisions to guarantees.115
Contracts negotiated away from business premises
3.69 This Directive, sometimes referred to as the Directive on Consumer Protection in the Context of Doorstep Selling, aims to protect consumers who may not be able to appreciate all the implications of entering into the contract. This is because the contract is initiated by a person who is acting in a commercial or professional capacity,116 and because the subject of the contract could be regarded as outside the consumer’s trade or profession.117
3.70 The Directive is stated to:
apply to contracts under which a trader supplies goods or services to a consumer and which are concluded:...
- during a visit by a trader
(i) to the consumer’s home or to that of another consumer;
(ii) to the consumer’s place of work;
where the visit does not take place at the express request of the consumer.118
A “trader” includes “anyone acting in the name or on behalf of a trader”.119
3.71 The Directive provides that a contract becomes effective only if the consumer does not cancel it within at least seven days of receiving from the trader a notice informing the consumer of his or her right to cancel.120
3.72 The European Court of Justice has suggested that, unlike the Directive on Consumer Credit, this Directive can be applied to guarantees in certain circumstances.121 In 1998, the Court, interpreting the then German version of the Directive,122 held that a guarantee entered into by a person who is not acting in the course of that person’s trade or profession, does not come within the scope of the Directive where the contract guarantees a debt undertaken by another person who is acting in the course of his or her trade or profession.123 This means that the Directive could apply where both the guarantor and the borrower enter their agreements away from the business premises of the lender.124 This is because nothing in the wording of the Directive requires that the person entering the contract under which goods or services are supplied must be the person to whom they are actually supplied.125
3.73 The United Kingdom has implemented the Directive, giving consumers a seven day cooling off period to cancel a contract entered into as a result of doorstep selling.126
United States Trade Commission Regulations
3.74 In the United States, the Federal Trade Commission Act declares certain unfair or deceptive acts or practices in or affecting commerce to be unlawful.127 Regulations have been framed under this Act128 in relation to credit practices, including the taking of guarantees.129 The particular provisions relating to guarantors (referred to as “cosigners”) apply only to the extension of credit to a consumer,130 that is, a person who “seeks or acquires goods, services, or money for personal, family, or household use”131 and only where that person “renders himself or herself liable for the obligation of another person without compensation”.132 The Regulations declare it to be a “deceptive act or practice... for a lender... directly or indirectly, to misrepresent the nature or extent of cosigner liability to any person”.
3.75 The Regulations prescribe a notice that must be given to guarantors before they enter the obligation. The notice must consist of a separate document containing only the following statement:
Notice to Cosigner
You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn’t pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility.
You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount.
The creditor can collect this debt from you without first trying to collect from the borrower. The creditor can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of your credit record.
This notice is not the contract that makes you liable for the debt.133
The Regulations also allow State laws to continue to have effect provided they afford a level of protection to consumers that is “substantially equivalent to, or greater than”, the protection afforded by the Regulations, and the State administers and enforces the law effectively.134
3.76 The Federal Trade Commission may take action in relation to the acts declared to be unlawful by the Federal Trade Commission Act.135 However, it would appear that there is no private cause of action arising out of an alleged breach of these provisions.136
Consent requirements in Canadian homestead laws
3.77 In Saskatchewan, where a person may not deal with a homestead property without the consent of the non-owning spouse, the non-owning spouse must indicate his or her consent to the property transaction in a prescribed form and must then acknowledge his or her consent before a judge, a justice of the peace, a solicitor or a notary public who does not have any interest in the transaction or in the preparation of the relevant documents. The non-owning spouse must make the declaration “separate and apart” from the owning spouse, and the person taking the acknowledgment must certify that they have examined the non-owning spouse, that the non-owning spouse understands his or her rights in the homestead, and that he or she has signed the consent freely and without compulsion from the owning spouse.137
3.78 The procedures for the examination of the non-owning spouse are similar to provisions in the Fines and Recoveries Abolition Act of 1833 (Eng). This Act, which comes from the period before equality was extended to women in property dealings, effectively established a protective jurisdiction for married women who sought, for the purposes of the Act, to deal with property on their own account.138
3.79 Alberta also requires that the consent of the non-owning spouse must be separately acknowledged and certified apart from the other spouse.139
FOOTNOTES
1. R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta and Co, Cape Town, 1990) at 146-148.
2. Digest 16.1 (Ad senatus consultum velleianum).
3. This could be seen as equivalent, in some respects, to the extension of contractual capacity to married women at the end of the 19th century.
4. See J A Crook, “Feminine inadequacy and the senatusconsultum Velleianum” in B Rawson (ed), The Family in Ancient Rome: New Perspectives (Routledge, London, 1986) at 58-92; J B Moyle, Imperatoris Iustiniani Institutionum Libri Quattor (5th edition, Clarendon Press, Oxford, 1912) at 429.
5. J F Gardner, “Women in business life: some evidence from Puteoli” in P Setala and L Savunen (ed) Female Networks and the Public Sphere in Roman Society (Acta Instituti Romani Finlandiae, 22, Rome, 1999) at 11-27.
6. R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta and Co, Cape Town, 1990) at 148-151.
7. W W Buckland, A Text-book of Roman Law from Augustus to Justinian (3rd edition, Cambridge University Press, Cambridge, 1966) at 448. See also J B Moyle, Imperatoris Iustiniani Institutionum Libri Quattor (5th edition, Clarendon Press, Oxford, 1912) at 430.
8. See W W Buckland, A Text-book of Roman Law from Augustus to Justinian (3rd edition, Cambridge University Press, 1966) at 449.
9. J A C Thomas, Textbook of Roman Law (Kluwer Law and Taxation Publishers, Deventer [Netherlands], 1976) at 243.
10. J B Moyle, Imperatoris Iustiniani Institutionum Libri Quattor (5th edition, Clarendon Press, Oxford, 1912) at 147.
11. R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta and Co, Cape Town, 1990) at 152.
12. Suretyship Amendment Act 1971 (South Africa).
13. Van Rensburg v Minnie 1942 OPD 257 at 259, 262 (van den Heever J) quoted in R Megarry, A Second Miscellany-at-Law: A Further Diversion for Lawyers and Others (Stevens and Sons Ltd, London, 1973) at 245.
14. Grundgesetz.
15. Bürgerliches Gesetzbuch (BGB) §765-778.
16. See B Markesinis, H Unberath and A Johnston, The German Law of Contract: A Comparative Treatise (2nd edition, Hart Publishing, Oxford, 2006) at 870.
17. (BVG) NJW 1994, 36 (19 October 1993), reproduced in English in B Markesinis, H Unberath and A Johnston, The German Law of Contract: A Comparative Treatise (2nd edition, Hart Publishing, Oxford, 2006) at 744-751. See also M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 274-277.
18. (BGH), NJW 47, 1341 (24 February 1994); M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 281.
19. (BGH) NJW 47, 1341 (24 February 1994).
20. M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 281.
21. M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 283-284.
22. See especially (BGH) NJW 47, 1341 at II.6 (24 February 1994). See also (BGH) NJW 2002, 2228 at II.1 (14 May 2002).
23. M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 284.
24. M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 284-285. See also B Markesinis, H Unberath and A Johnston, The German Law of Contract: A Comparative Treatise (Hart Publishing, Oxford, 2006) at 257.
25. “Equal Credit Opportunity Act” is the title applied to 15 United States Code §1691-1691f.
26. 15 United States Code § 1691.
27. A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1291. See also the discussion of the court in CMF Virginia Land LP v Brinson 806 F Supp 90 (1992) at 96.
28. A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1293.
29. See 15 USC § 1691b(a)(2), 1691b(a)(4), 1691b(a)(5).
30. K A Palmer, “ECOA, Regulation B, and the Spousal Guaranty” (1993) 110 The Banking Law Journal 342 at 342.
31. 15 USC §1691(b)(1). See also 12 CFR § 202.5 and 202.6(b).
32. 15 USC § 1691d(a).
33. 15 USC § 1691b(a)(1).
34. 12 Code of Federal Regulations § 202.7(d)(1).
35. 12 Code of Federal Regulations § 202.2(e). This would appear to mean that a guarantor could sue under 15 USC § 1691e: see Silverman v Eastrich Multiple Investor Fund LP 51 F3d 28 (1995) at 30-31
36. 12 Code of Federal Regulations § 202.7(d)(5); 15 USC § 1691a(b). See also Stern v Espirito Santo Bank of Florida 791 F Supp 865 at 869 (1992).
37. A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1288-1289, 1293-1295.
38. A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1289.
39. A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1289.
40. 15 USC § 1691e(c).
41. A L diLorenzo, “Regulation B: How Lenders can Fight Back Against the Affirmative Use of Regulation B” (2000) 8 University of Miami Business Law Review 215 at 217-218.
42. See A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1296-1297.
43. A M Farley, “The Spousal Defence - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1290.
44. Silverman v Eastrich Multiple Investor Fund LP 51 F 3d 28 (1995); Integra Bank v Freeman 839 F Supp 326 (993); Federal Deposit Insurance Corporation v Medmark Inc 897 F Supp 511 at 514 (1995); Southwestern Pennsylvania Regional Council Inc v Gentile 776 A 2d 276 at 282 (2001).
45. CMF Virginia Land LP v Brinson 806 F Supp 90 (1992) at 95-96; Diamond v Union Bank and Trust of Bartlesville 776 F Supp 542 (1991); Federal Deposit Insurance Corporation v 32 Edwardsville Inc 873 F Supp 1474 at 1480 (1995). But see A L diLorenzo, “Regulation B: How lenders can fight back against the affirmative use of Regulation B” (2000) 8 University of Miami Business Law Review 215 at 217-218; K A Palmer, “ECOA, Regulation B, and the Spousal Guaranty” (1993) 110 The Banking Law Journal 342 at 349; A M Farley, “The Spousal Defense - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1298-1304; Silverman v Eastrich Multiple Investor Fund LP 51 F 3d 28 at 33 (1995).
46. For examples of advice to lenders aimed at ensuring compliance with the ECOA see K A Palmer, “ECOA, Regulation B, and the Spousal Guaranty” (1993) 110 The Banking Law Journal 342 at 349-351; A L DiLorenzo, “Regulation B: How Lenders can Fight Back Against the Affirmative Use of Regulation B” (2000) 8 University of Miami Business Law Review 215 at 222-223. See also P H Schieber, “Attention Lenders: Reevaluate Spousal Signature Policies and Procedures” (1993) 5 Loyola Consumer Law Reporter 68.
47. K A Palmer, “ECOA, Regulation B, and the Spousal Guaranty” (1993) 110 The Banking Law Journal 342 at 350-351.
48. K A Palmer, “ECOA, Regulation B, and the Spousal Guaranty” (1993) 110 The Banking Law Journal 342 at 351.
49. A M Farley, “The Spousal Defense - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1307.
50. See para 4.32.
51. A M Farley, “The Spousal Defense - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1308.
52. A M Farley, “The Spousal Defense - A Ploy to Escape Payment or Simple Application of the Equal Credit Opportunity Act?” (1996) 49 Vanderbilt Law Review 1287 at 1309.
53. See B Fehlberg, Sexually Transmitted Debt: Surety Experience and English Law (Clarendon Press, Oxford, 1997) at 273-274.
54. A Milner, “A Homestead Act for England?” (1959) 22 Modern Law Review 458 at 462.
55. See R M Hynes, A Malani and E A Posner, “The Political Economy of Property Exemption Laws” (2004) 47 Journal of Law and Economics 19 at 19 and 25-26 (Table 1). See also G L Haskins, “Homestead Exemptions” (1950) 63 Harvard Law Review 1288 for an overview of the position in 1950.
56. See R M Hynes, A Malani and E A Posner, “The Political Economy of Property Exemption Laws” (2004) 47 Journal of Law and Economics 19 at 23.
57. R M Hynes, A Malani and E A Posner, “The Political Economy of Property Exemption Laws” (2004) 47 Journal of Law and Economics 19 at 20, 40-41.
58. G L Haskins, “Homestead Exemptions” (1950) 63 Harvard Law Review 1288 at 1288.
59. G L Haskins, “Homestead Exemptions” (1950) 63 Harvard Law Review 1288 at 1289.
60. M W McCarthy, “The Massachusetts Homestead Act: Throw Out the Bathwater” (2000) 44 Boston Bar Journal 12 at 12.
61. G L Haskins, “Homestead Exemptions” (1950) 63 Harvard Law Review 1288 at 1289.
62. Kansas Statutes §60-2301. Most of the provisions in this section have the force of constitutional protection, having been lifted directly from the Kansas Constitution: Constitution of the State of Kansas §15-9.
63. Grant v Mossman 384 F2d 496 (1967), a case relating to jointly held property inherited by two brothers.
64. R L Theis and K R Swartz, “Kansas Homestead Law” (1996) 65 Journal of the Kansas Bar Association 20 at 20.
65. R L Theis and K R Swartz, “Kansas Homestead Law” (1996) 65 Journal of the Kansas Bar Association 20 at 48.
66. LaRue v Gilbert 18 Kan 220 (1877) at 222.
67. Texas Constitution Art 16 §50 and 51.
68. Texas Property Code §41.001.
69. Texas Property Code §41.002.
70. Bradley v Pacific Southwest Bank 960 F2d 502 (1992) at 505-507.
71. Bradley v Pacific Southwest Bank 960 F2d 502 (1992) at 507.
72. General Laws of Massachusetts §188-1.
73. General Laws of Massachusetts §188-2. Separate provision is also made in relation to persons who are 62 years or older, “regardless of marital status” or who are disabled: General Laws of Massachusetts §188-1A.
74. M W McCarthy, “The Massachusetts Homestead Act: Throw Out the Bathwater” (2000) 44 Boston Bar Journal 12 at 13.
75. M W McCarthy, “The Massachusetts Homestead Act: Throw Out the Bathwater” (2000) 44 Boston Bar Journal 12 at 12 and 27.
76. Homesteads Act 1989, SS 1989-90, c H-5.1.
77. Homesteads Act 1989, SS 1989-90, c H-5.1 s 5(1); Dower Act RSA 2000 c D-15 s 4.
78. Homesteads Act 1989, SS 1989-90, c H-5.1 s 5(2); Dower Act RSA 2000 c D-15 s 25(2).
79. Alberta Law Reform Institute, The Matrimonial Home (Report for Discussion 14, 1995) at 71.
80. Joint Family Homes Act 1964 (NZ) s 9(1)(b).
81. Joint Family Homes Act 1964 (NZ) s 16(5).
82. See Joint Family Homes Act 1964 (NZ) s 16(1)(b). The court’s discretion is unfettered and subject only to the requirements of justice in all the circumstances of the case: Official Assignee v Lawford [1984] 2 NZLR 257 at 264.
83. Joint Family Homes Act 1964 (NZ) s 9(2)(d).
84. New Zealand, Law Commission, The Future of the Joint Family Homes Act (Report 77, 2001) at para 8.
85. B Fehlberg, Sexually Transmitted Debt: Surety Experience and English Law (Clarendon Press, Oxford, 1997) at 275.
86. New Zealand, Law Commission, The Future of the Joint Family Homes Act (Report 77, 2001) at para 16-21.
87. The court considered the circumstances would have been no different had it been the husband rather than the family company that was insolvent: Official Assignee v Lawford [1984] 2 NZLR 257.
88. The relevant provisions were originally enacted in Crown Lands Act 1895 (NSW) s 23. The Act was repealed and the provisions replaced by Crown Lands Consolidation Act 1913 (NSW) s 271. The 1913 Act was repealed by the Crown Lands Act 1989 (NSW) which did not replace the homestead provisions.
89. Homestead selection, homestead farm, suburban holding, Crown-lease, or lease within an irrigation area were all particular forms of land holdings available under the Crown Lands Consolidation Act 1913 (NSW): see s 88-97, 118-123A, 124-129B; 130-136; 137-147N.
90. The provisions relating to bankruptcy may have been inoperative from 1928 following the coming into operation of the Bankruptcy Act 1924 (Cth): See B A Helmore, The Law of Real Property in New South Wales (2nd edition, Law Book Co, Sydney, 1961) at 558. See also Price v Parsons (1936) 54 CLR 332 (in relation to Bills of Sale Act 1898 (NSW) s 5); and Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 204 ALR 46 at para 18 (in relation to a permissive occupancy under Crown Lands Consolidation Act 1913 (NSW) s 136K(1)).
91. Crown Lands Consolidation Act 1913 (NSW) s 271(1)(c).
92. S H Roberts, History of Australian Land Settlement (1788-1920) (Macmillan & Co, Melbourne, 1924) at 292-293.
93. See Regulation published in Government Gazette No 116 of 3 September 1982, cl 3, amending Crown Lands Consolidation Regulations 1914 (NSW) reg 208. By 1982, in the case of Crown grants, an eligible person could lodge the prescribed form, together with a fee of $30, with the Registrar-General, or with the Crown land agent in the district in the case of Crown leases, or Crown grants that had not yet been issued: Crown Lands Regulations 1914 (NSW) reg 207-209 and Form 74. See also J Baalman and T Le M Wells, The Practice of the Land Titles Office (New South Wales) (3rd edition, Law Book Co, Sydney, 1952) at 104-105; and A G Lang, Crown Land in New South Wales (Butterworths, Sydney, 1973) at 415.
94. The Standing Committee on Law and Justice has recommended that the government establish a taskforce to develop amendments to the Fair Trading Act 1987 (NSW) (modeled on the Fair Trading Act 1999 (Vic) Pt 2B), that would result in the protection of consumers in relation to unfair terms in consumer contracts: see Parliament of New South Wales, Legislative Council, Standing Committee on Law and Justice, Unfair Terms in Consumer Contracts (Report 32, 2006).
95. M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 293.
96. Directive 93/13/EEC.
97. Directive 87/102/EEC.
98. Directive 85/577/EEC.
99. Directive 93/13/EEC art 6(1).
100. Directive 93/13/EEC art 7.
101. Directive 93/13/EEC art 1(1).
102. Directive 93/13/EEC art 3(2).
103. Directive 93/13/EEC art 5.
104. Directive 93/13/EEC art 4(1).
105. Directive 93/13/EEC art 5.
106. BGB §307(1), previously implemented by Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen (AGBG) § 9(1).
107. M Habersack and R Zimmermann, “Legal Change in a Codified System: Recent Developments in Germany Suretyship Law” (1999) 3 Edinburgh Law Review 272 at 287.
108. Unfair Terms in Consumer Contracts Regulations 1999 (UK) reg 5(1).
109. See, for example, Unfair Terms in Consumer Contracts Regulations 1994 (UK) reg 5(1).
110. R Bradgate, “The Integration of Directive 93/13 into the National Legal Systems: Experience in the United Kingdom” paper delivered at the Conference The Directive on “Unfair Terms”: 5 Years on - Evaluation and Future Perspectives (Brussels, Belgium, 1-3 July 1999) at 37, in relation to Unfair Terms in Consumer Contracts Regulations 1994 (UK) reg 5(1)). The position does not appear to have altered in the 1999 regulations: Unfair Terms in Consumer Contracts Regulation 1999 (UK) reg 8(1)). See also B Markesinis, H Unberath and A Johnston, The German Law of Contract: A Comparative Treatise (2nd edition, Hart Publishing, Oxford, 2006) at 47.
111. See Article 4(3), 15 and Annex I item 1(vii) to 87/102/EEC.
112. Verbraucherkreditgesetz (1990). This provision is subject to a maximum limit of one year from the conclusion of the credit agreement.
113. Berliner Kindl Brauerei AG v Siepert (European Court of Justice (5th Chamber), C-208/98, Judgment of the Court, 23 March 2000) at para 19-26. See also Berliner Kindl Brauerei AG v Siepert (European Court of Justice (5th Chamber), C-208/98, Opinion of Advocate General Léger, 28 October 1999) at para 43, 50, 62, 66.
114. Berliner Kindl Brauerei AG v Siepert (European Court of Justice (5th Chamber), C-208/98, Judgment of the Court, 23 March 2000) at para 25. See also Berliner Kindl Brauerei AG v Siepert (European Court of Justice (5th Chamber), C-208/98, Opinion of Advocate General Léger, 28 October 1999) at para 55-62.
115. Commission of the European Communities, Report on the operation of Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (COM (95) 117 final, 1995) at 88-89.
116. Directive 85/577/EEC art 1(1).
117. See Directive 85/577/EEC art 2.
118. Directive 85/577/EEC art 1(1).
119. Directive 85/577/EEC art 2.
120. Directive 85/577/EEC art 4, 5.
121. Berliner Kindl Brauerei AG v Siepert (European Court of Justice (5th Chamber), C-208/98, Judgment of the Court, 23 March 2000) at para 24.
122. Gesetz über den Widerruf von Haustürgeschäften und ähnlichen Geschäften (16 January 1986), now contained in BGB §312
123. Bayerische Hypotheken- und Wechselbank AG v Dietzinger (European Court of Justice, C-45/96, Judgment of the Court (5th Chamber), 17 March 1998) at para 23.
124. Bayerische Hypotheken- und Wechselbank AG v Dietzinger (European Court of Justice, C-45/96, Judgment of the Court (5th Chamber), 17 March 1998) at para 22.
125. Bayerische Hypotheken- und Wechselbank AG v Dietzinger (European Court of Justice, C-45/96, Judgment of the Court (5th Chamber), 17 March 1998) at para 19. See also Berliner Kindl Brauerei AG v Siepert (European Court of Justice (5th Chamber), C-208/98, opinion of Advocate General Léger, 28 October 1999) at para 38-39.
126. Consumer Protection (Contracts Concluded Away from Business Premises) Regulations 1987 (UK) reg 4.
127. See 15 USC § 45(a)(1).
128. See 15 USC § 57a(a)(1)(B).
129. See 16 CFR Pt 444.
130. 16 CFR § 444.3(a).
131. 16 CFR § 444.1(d).
132. 16 CFR § 444.1(k).
133. 16 CFR § 444.3(c).
134. 16 CFR § 444.5(a).
135. 15 USC § 45(a)(1).
136. See Holloway v Bristol-Myers Corp 485 F2d 986 (1973); Carlson v Coca-Cola Co 483 F2d 279 (1973); Fulton v Hecht 580 F2d 1243 (1978); Naylor v Case and McGrath Inc 585 F2d 557 (1978); Baum v Great Western Cities Inc 703 F2d 1197 (1983); RT Vanderbilt Co v OSHRC 708 F2d 570 (1983); Morrison v Back Yard Burgers Inc 91 F3d 1184 (1996).
137. Homesteads Act 1989, SS 1989-90, c H-5.1 s 7. See also A Milner, “A Homestead Act for England?” (1959) 22 Modern Law Review 458 at 467 for a discussion of an earlier version of the Saskatchewan statute.
138. See 3&4 William IV c 74 (Eng) s 80 which provides “that such Judge, Master in Chancery, or Commissioners as aforesaid, before he or they shall receive the Acknowledgment by any married Woman of any Deed by which any Disposition, Release, Surrender, or Extinguishment shall be made by her under this Act, shall examine her, apart from her Husband, touching her Knowledge of such Deed, and shall ascertain whether she freely and voluntarily consents to such Deed, and unless she freely and voluntarily consent to such Deed shall not permit her to acknowledge the same; and in such Case such Deed shall, so far as relates to the Execution thereof by such married Woman, be void”. See also the provisions requiring certification by the persons who have examined the married woman: 3&4 William IV c 74 (Eng) s 84.
139. Dower Act RSA 2000 c D-15 s 5.
