The Husband, the Bank, the Wife and her Signature
| Published date | 01 May 1994 |
| Author | Belinda Fehlberg |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01954.x |
| Date | 01 May 1994 |
May
19941
The
Husband,
the
Bank,
the
Wife
and
her
Signature
Justices’ holding. The act of distilling the ‘essential holding’ from
Roe
too
obviously involves a substantial degree of discretion, and the Justices’ own sense
that the trimester framework undervalued potential human life is too clearly
involved in the distilling process.48
Why, then, are Justices O’Connor, Kennedy and Souter
so
determined to
proclaim their respect for
Roe
independent of whether they would have supported
it in
1973?49
The answer to this question is rather transparently political. The
Justices set forth at length their concern that ‘a terrible price would
be
paid for
overruling’
Roe.%
This price, they argue,
is
the legitimacy of the Court itself
‘overruling
Roe’s
central holding
.
.
.
would seriously weaken the Court’s capacity
to exercise the judicial power and to function as the Supreme Court
of
a nation
dedicated to the rule of law
. . .
to overrule under fire in the absence of the most
compelling reason to re-examine a watershed decision would subvert the Court’s
legitimacy beyond any serious question.’51 In a system where public acceptance of
judicial decision-making is grounded on an apolitical picture of judges as
interpreters of the law, Justices O’Connor, Kennedy and Souter do not feel they
can afford to overrule a decision under overt assault from, among others, the
executive branch. When they avow respect for
stare decisis
in this context, they
stake a claim to institutional survival.
The Husband, the Bank, the Wife and her Signature
Belinda Fehlberg*
In
Barclays Bank
plc
v
O’Brien‘
and
CIBC Mortgages
plc
v the House of
Lords addressed the legal problems which arise from a socially complex, yet fairly
common, scenario involving wives, husbands and creditor banks. The scenario
occurs when a wife, under some emotional pressure or misunderstanding caused
by her husband, signs a charge over the family home in order to secure a loan to a
business which, although conducted by the husband, often provides the family’s
income. Two particular issues arise in these circumstances. First, to what extent
should private pressures and misunderstandings operate to invalidate such a
transaction as against the creditor taking the charge? Second, how relevant is the
fact that, at least to an outsider, the wife may have stood to gain as well as lose
from entering the transaction? These issues, and the uneasy interaction between
‘private’ spousal relationships and ‘public’ third party security transactions
generally, remain problematic after
0
’Brien
and
Pitt.
48
See
eg
112
S
Ct
2818.
49
See
eg
ibid
at
2808.
This determination is particularly
striking
in light of the general tendency of US
courts to interpret the principle of
store
decisis
in
a
less formal
manner
than their British counterparts.
See
Atiyah and Summers,
Form
and
Substance in Anglo-American
Law
(Oxford: Clarendon Press,
1987) pp
116- 119.
50
112
S
Ct
2814.
51
ibid
at
1814- 1815.
*Centre for Socio-Legal Studies, University of Oxford; and School of Law, University of Warwick.
I
am
grateful
to
Professor
Hugh
Beale and Dr Gerard Bean, both of the University of Warwick, for their
comments on
an
earlier draft
of
this note.
Errors
are
my own.
1
2
119931
4
All
ER
417
(HL).
119931 4
All
ER
433
(HL).
0
The
Modern
Law
Review
Limited
1994
467
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