Men Behaving Badly: An Analysis of English Undue Influence Cases

Date01 June 2002
Published date01 June 2002
Subject MatterArticles
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University of Westminster, UK
Undue influence in mortgage cases is a major issue for women in turn-of-the-century
English Land Law. The case reports reveal a catalogue of bad behaviour by men – not
simply the perpetrators but also solicitors and bank officials – which courts allow to
go unchecked, indeed almost unnoticed. This is because men’s bad behaviour in this
area (as in others) is taken for granted in our society. Law uses a number of mechan-
isms to obscure and condone men’s bad behaviour: claiming the neutrality of doctrine
and the ‘special tenderness’ of equity towards women, pretending ‘balance’ where in
reality there is none, using language in clever and manipulative ways, and managing
to ignore women’s pain by shifting the focus of the law from the wrong itself to the
ways in which creditors can avoid being affected by it. The undue influence test is
manifestly unsuitable for the protection of women; equity’s role appears to be the
defence of business interests, not the weak and vulnerable. While there are some recent
and welcome signs of legal engagement with the problems of masculinity, the
solutions to women’s problems lie largely outside law, in women’s greater financial
independence and a realignment of the relationship of men and women to what Joan
Williams calls ‘domesticity’.
The stream of cases concerning undue influence or misrepresentation in
mortgage transactions represents the fiercest of struggles between equity’s
much-vaunted defence of the vulnerable and the ‘needs’ of commerce. The
House of Lords first tried to set down workable rules in Morgan (1985) and
again in O’Brien (1993), but the stream of litigation only turned into a flood,
and last year the House of Lords was obliged in Etridge (No. 2) to pronounce
That undue influence emerged as such a big problem at the close of the 20th
century was the unsurprising consequence of increased home ownership in
SOCIAL & LEGAL STUDIES 0964 6639 (200206) 11:2 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
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post-war Britain together with successive governments’ encouragement of
small businesses, all in the context of a continuing assumption that men are
responsible for earning the family income and women for looking after the
home. Potential for conflict and pressure arose when men wanted to raise
business capital on the security of the home, often the family’s only substan-
tial asset, while wives and partners were reluctant to jeopardize the roof over
their heads. In the past, a man might simply have gone ahead and mortgaged
the house without reference to his wife, and the bank or building society
would have been happy to oblige. But modern ideas about joint ownership
and the spectre of Boland have put an end to that: now he must seek her
consent, and they will be affected by his legal wrong if they have notice of it.
In most of the reported cases (at least until the recent spate of interlocu-
tory appeals) the court has already accepted that the principal debtor’s undue
influence or misrepresentation has occurred, and their central concern has
been whether it will impugn the transaction vis-a-vis the lender. The Court
of Appeal in Etridge (No. 2) affirmed that lenders would not be fixed with
constructive notice of undue influence if they had received confirmation from
a solicitor that the surety had been advised of the nature and effect of the
transaction she was entering into. The effect of this was to provide far more
protection for the banks than for the woman who had been the victim of
undue influence. In Caplan, for example, the bank arranged for the wife’s
‘independent legal advice’ to be given by the solicitor who also acted for the
husband and his company. She subsequently testified that the effect of the
transaction had not been made clear to her and she had not realized she would
lose her home if her husband’s business failed. The solicitor was unable to
give his side of the story because he was in gaol for some apparently unre-
lated offence. But the judge regarded the question of whether his advice to
Mrs Caplan had been competent or independent as ‘irrelevant’. He found that
Mrs Caplan ‘would have entered into the charge . . . whatever [the solicitor]
had said. She would have done so because she believed in her husband’s
ability to make a success of the new business’ (at 538, 544).
Because of this finding, Mrs Caplan was precluded from suing the solicitor
for negligence, her sole remaining chance of compensation; for, if she would
have entered into the transaction anyway, ‘no loss could have flowed even
from such breach of duty as occurred’ (at 549). She could not win – or rather,
the bank and the solicitor could not lose. Neither the bank nor the solicitor
would be held liable for the advice which was, or was not, given, because she
would have disregarded it anyway. And why would she have disregarded it?
Because she was under the influence of her husband. . .
My aim in this article is to use the reported case law on undue influence and
misrepresentation in mortgage transactions to explore a phenomenon not con-
fined to mortgage law or, indeed, to law: the phenomenon of men behaving

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badly. This means refocusing on the details of the undue influence and mis-
representation perpetrated by the principal debtors and other aspects of their
behaviour towards their sureties. It also involves considering the words and
actions of the bank officials, solicitors and even the judges in the cases.
Although, of course, men do not have a monopoly on bad behaviour,
nevertheless the assumption in this area of law that the wrongdoer will be
male and the victim female or elderly is nearly always borne out in practice.
In Rivett, a rare case involving a male surety, the Court of Appeal felt it neces-
sary to affirm that ‘There was nothing to prevent a husband raising the
defence of undue influence, as a husband could be subject to the same fear of
opposing a spouse’s wishes as a wife’ (at 730). The fact that the role reversals
in this case seem almost comical (though probably not to the parties con-
cerned) – the husband ‘had always relied on his wife in financial matters’ (at
730), the wife intercepted the bank’s letters and the bank official whose advice
was alleged to be inadequate was a woman – shows just how fixed are our
expectations that, as between the sexes, it will be the men who take advan-
tage and the women who lose out. Rivett is therefore an important correc-
tive to any essentialist notion of gendered behaviour. The significant factor is
that undue influence involves, as Millett LJ explains, ‘the exploitation of the
vulnerable’ (Millett, 1998: 219), and that vulnerability, whether it be due to
emotional or economic or other causes, is in the present stage of social
development more likely to be experienced by a woman than a man.
While accepting, therefore, that women are not incapable of undue influ-
ence (just as they are not incapable of violent crime or paedophilia), I have
chosen here to focus on the bad behaviour of the individual men and the insti-
tutions in these cases. I have done this because, first, the evidence shows that,
to date at least, bad behaviour by men and institutions is a usual and appar-
ently widespread scenario in these mortgage disputes. The sheer number of
cases – and of course reported cases are but a fraction of the total – indicates
the size of the problem. Second, bad behaviour by women, though less
common than bad behaviour by men, has (perhaps for this reason) attracted
more than its share of judicial and public reaction, ranging from condemna-
tion to perplexity, via all manner of attempts at explanation and excuse. Bad
behaviour by men, by contrast, is still largely neglected in judicial and aca-
demic commentary, though there are signs of change here (see, for instance,
Bibbings, 2000; Collier, 1995, 2001). My study of the undue influence cases
suggests that morally reprehensible behaviour by men is so common as to
seem normal and acceptable and, therefore, unworthy of comment.
There has been plenty of commentary on the undue influence cases, ranging
from property law engagements with, for example, the nature of the ‘notice’
introduced in O’Brien (Dixon and Harpum, 1994; Sparkes, 1995) or whether
unconscionability might be a better basis for the jurisdiction (Capper, 1998;

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Chen-Wishart, 1997; Tijo, 1997) to socio-legal critiques of, for example, the
extent of the protection really offered to sureties or the appropriateness of
this sort of protection anyway. Feminists in particular have problematized
the courts’ approach. Belinda Fehlberg’s important and much-cited book,
Sexually Transmitted Debt (1997), represents an unusual intervention in case
law discussions: Fehlberg actually spoke to some of the women involved in
undue influence litigation (and to their lawyers and bank officials) in an effort
to gather all sides of the story. She found that most of the women sureties
knew what they were doing but felt unable to withhold their consent to the
mortgage. Some subsequently expressed...

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