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Australian Feminist Law Journal Volume 4, 1995 - Issue 1
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Original Articles

“Sexually Transmitted Debt” A Feminist Analysis of Laws Regulating Guarantors and Co-borrowers

Nicola Howell
Pages 93-109 | Published online: 07 Jan 2015

  • Jocelynne A. Scutt, ‘Consumers: How Much Clout Do Women Have?” Paper presented to the Women's Luncheon hosted by Hon. Yvonne Henderson MLA, September 1989, Perth WA, 4–6. See also generally Anti-Discrimination Board (NSW), Women and Credit: Sex Discrimination in Consumer Lending 1986.
  • Scutt, op. cit., n. 1, 8; Trade Practices Commission, Guarantors: Problems and Perspectives Discussion Paper, 1992, 14; Redfern Legal Centre, More, More, More: Lending Practices and Overcommitment, 1988, 8–9.
  • STDs can also arise when women take out loans in their own names for credit provided to their male partner, A. Taylor and the Women and Credit Task Group, How to Get Out of Sexually Transmitted Debt A Guide to Workers Assisting Women in Debt undated, para 1.3; when women become guarantors for a family company controlled by their partner or for the business of their partner; when women are “silent” directors of family companies, and therefore primarily responsible for the debts of the company Radmila Jukic, Til Debt Do Us Us Part, 1994; and when women are pursued by credit providers for previously joint debts that had been awarded to their ex-husbands as a result of Family Court proceedings.
  • Anti-Discrimination Board (NSW), op. cit., n. 1, 11.
  • Emma Swart, ‘Accidental Solutions to a Perverse Problem: the Law and Sexually Transmitted Debt’, paper delivered to Women and Credit; A Forum on Sexually Transmitted Debt March 6, 1991, Melbourne, Victoria, 1. The Consumer Advocacy and Financial Counselling Association of Victoria (Inc.) is currently undertaking a survey funded by the Victorian Women's Trust and entitled Women, Information and the Family Business’. The results will be published in June 1995 and should add to the data available on STDs.
  • See for example, ‘Family debt runs out of control’ Sunday Age, 29 January 1995, 16.
  • Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development 1982, 28, cited in Regina Graycar and Jenny Morgan, The Hidden Gender of Lain, Sydney: Federation Press, 1990, 51.
  • Jenny Lawton, What is Sexually Transmitted Debt?” in Ministry of Consumer Affairs (Victoria), Summary of Proceedings—Women and Credit -A Forum on Sexually Transmitted Debt 1991, 7, 8.
  • See for example Dale Spender, Invisible Women, 1982.
  • Scutt, op. cit., n. 1, 10.
  • Gilligan, op. cit., n. 7, 28–32, cited in Graycar and Morgan, op. cit., n. 7, 51.
  • Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law, 1987, 38–39, quoted in Graycar and Morgan, op. cit., n. 7, 53.
  • J. Williams, ‘Deconstructing Gender’ (1989) 87 Michigan Law Review 797.
  • Nolan V. Watpac Banking corporation [1989] ASC 55–930.
  • Commonwealth Bank of Australia Ltd V. Amadio (1983) 151 CLR 447.
  • Renshaw V. Melbourne Money Pty Ltd [1990] ASC 55–958.
  • Bridge Wholesale Acceptance (Australia) Ltd V. GVS Associates Pty Ltd and others [1991] ASC 56–105.
  • Luffram V. ANZ Bank [1986] ASC 55–483.
  • Lawton, op. cit., n. 8, 8.
  • Commonly young men and recently arrived migrants: Australian Law Reform Commission, Multiculturalism: Consumer Contracts, Discussion Paper No. 49, 1991, 11, 21.
  • Ibid., 9–10.
  • Ibid.
  • Credit providers are implicitly saying to the debtor “We don't think that it's an acceptable risk. Do you have anyone who loves you enough to sacrifice everything for you if you stuff it up? Age, 15 October 1991.
  • Sunday Herald, 1 October 1991.
  • Redfern Legal Centre, op. cit., n.2, 64.
  • Although credit providers are under no duty to advise a guarantor of the risks involved, unless those risks can be considered to be ‘unusual matters’: Trade Practices Commission, op. cit., n. 2, 9–10.
  • Lawton, op. cit., n. 8, 7.
  • Ibid., 7; Taylor et al, op. cit., n. 3, para 1.3.
  • Lawton, op. cit., n. 8, 7. See also Saunders & Anor v. Permanent Pantry International Pty Ltd & Anor [1988] ASC 55–678 where the salesman gave evidence that “I had to write that down because it was a two-name contract and someone had to go spouse“. In that case, the person who “went spouse” was the boyfriend of the debtor's daughter 58, 127.
  • C. Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94 Yale Law Journal 997, 1010.
  • Ngaire Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence, 1990, 52–3.
  • Dalton, op. cit., n. 30, 1039–40.
  • (1983) 151 CIA 447.
  • A. J. Duggan, A Financier's Guide to the Law of Guarantee in Australia, 1989, 23
  • Ibid., 24.
  • Yerkey V. Jones (1940) 63 CLR 648; Taylor et al, op. cit., n. 3, para 4.3.
  • Bardays Bank plc v. O'Brien and Another [1993] 4 All ER 419, 428.
  • Atkins V. National Australia Bank (unreported, Court of Appeal, NSW, 5 August 1994), cited in P. W. Young, Yerkey V. Jones: does the principle actually exist?’ (1994) 68 Australian Law Journal 837.
  • See extracts from Teachers Health Investments Pty Ltd V. Wynne, unreported, Court of Appeal, NSW, 18 August 1994, cited in Young, op. cit., 838–9.
  • Duggan, op. cit., n. 34, 23, 35.
  • Credit Act 1984 (Vic), Credit Act 1984 (NSW), Credit Act 1984 (WA) and the Credit Act 1985 (ACT). The Credit Act 1987 (Qld) has been superseded by the Consumer Credit (Qld) Act 1994.
  • 1994. This is incorporated into the Consumer Credit (Qld) Act 1994 and is expected to be enacted in all States and Territories by September 1995.
  • 1974 (Cth).
  • 1980 (NSW).
  • Consumer Credit Code (1984) s 70(2).
  • Melverton V. Commonwealth Development Bank of Austria [1989] ASC 55–291, 58, 461.
  • Dalton, op. cit., n. 30, 1011.
  • G. Muir, ‘Contract and Equity: Striking a Balance’ (1985) 10 Adelaide Law Review 153, 162.
  • (1985) 8 NSWLR 192.
  • Ibid., 197.
  • Ibid., 197.
  • [1991] ASC 56–042.
  • Ibid., 56, 683.
  • Mary-Jo Frug, ‘Re-reading Contracts: A Feminist Analysis of a Contracts Casebook’ (1985) 34 American University Law Review 1065, 1087.
  • [1988] ASC 55–665
  • Ibid., 58,029–58,030.
  • Bridge Wholesale Acceptance (Australia) Ltd V. GVS Associated Pty Ltd and others [1991] ASC 56–105.
  • Nolan V. Westpac Banking Corporation [1989] ASC 55–930; Comer, op.cit., n. 52.
  • [1990] ASC 55–958.
  • [1988] ASC 55–686
  • Ibid., 58, 197.
  • [1989] ASC 55–921.
  • [1988] ASC 55–665.
  • Melverton, op. cit., n. 62, 55, 456.
  • Ibid., 55,459.
  • White, op. cit., n. 63, 58, 030.
  • Ibid., 58, 029.
  • Compare the majority and minority judgments in West V. ACG (Advances) Ltd. (1986) 5 NSWLR 610.
  • Dated 9 November 1993.
  • Trade Practices Commission op. cit., n. 2, 5.
  • Ibid., 22; Consumer Credit Legal Service (Vic), Draft Submission to the Trade Practices Commission Review of Guarantees (1992), 5, 18.
  • Trade Practices Commission, op. cit., n. 2, 22; ABA, op. cit., n. 69, para 17.5.
  • Mark Sneddon, ‘Unfair Conduct in Taking Guarantees and the Role of Independent Advice’ (1990) University of New South Wales Law Journal 302 defines adequate independent advice as independent of the interests of the lender and the debtor” and normally including a “clear explanation of the terms of the documents, the effects of the transaction, and the propriety of the surety entering into the suretyship transaction” (320).
  • For example, while a solicitor was giving advice to Mrs Aboody, her husband burst into the room uninvited and in high state of excitement” and demanded to know why the solicitor was not doing what he had been paid to do, that is, witness Mrs Aboody signature: Bank of Credit and Commerce International SA v Aboody [1990] 1 Q.B. 923, 951–2.
  • See Kurland, op. cit., n. 49, 201 and White op. cit., n. 55, 58, 030.
  • Consumer Credit Legal Service (Vic), op. cit., n. 71, 18; Trade Practices Commission, op. cit., n. 2, 23.
  • Trade Practices Commission, op. cit., n. 2, 24; Australian Law Reform Commission, op. cit., n. 20, 13.
  • 1988 (Cth).
  • Trade Practices Commission op. cit., n. 2, 21.
  • Ibid., 22; ABA op. cit., n. 69, paras 17.3, 17.6.
  • Redfern Legal Centre, op. cit., n. 2, 66.
  • Ibid., 22.
  • Consumer Credit Legal Service (Vic), op. cit. n. 71, 23.
  • ABA, op. cit., n. 69, para 17.2.
  • H. R. Wishik, To Question Everything: The Inquiries of Feminist Jurisprudence’ (1985) 1 Berkley Women's Law Journal 64, 65.
  • The “add women and stir approach: Ibid., 67.
  • Ibid., 68; Mary Jane Mossman, ‘Feminism and Legal Method: The Difference it Makes’ (1983) 3 Australian Journal of Law and Society 30, 31.
  • K. O'Donovan, ‘Engendering Justice: Women's Perspectives and the Rule of Law’ (1989) 39 University of Toronto Law Journal 127, 128.
  • Ibid., 134.
  • O'Donovan's notion of standpoint is that all standpoints are equally valid and it is for the system to decide which standpoint will prevail in a particular situation, Ibid. 138. However, she later suggests that the standpoint of women could be regarded as being more valid because women's subordinate status means that they do not have an interest in mystifying reality and are therefore more likely to present an unbiased representation of the world: Ibid., 148.
  • Dalton, op. cit., n. 30, 1014.
  • Naffine, op. cit., n. 31, 82.
  • Ibid., 53.
  • Ibid., 52.
  • Ibid., 52.
  • Ibid., 81.
  • West V. ACG (Advances) Ltd. (1986) 5 NSWLR 610, 631 per McHugh JA.
  • Swart op. cit., n. 5, 2.
  • Ibid., 1.
  • Compare Statewide Tobacco Services Ltd V. Morley (1990) 8 ACLC 827 with Beneficial Finance Corp Ltd V. Comer [1991] ASC 56–042
  • See for example, White, op. cit., n. 63, 58, 030.
  • Jenny Morgan, ‘Feminist Theory is Legal Theory’ (1988) 16 Melbourne University Law Review 743, 751.
  • Frug, op. cit., n. 54, 1133.
  • See also Frug, op. cit., n. 54, 1125–34.
  • Nolan V. Westpac Banking Corporation, op. cit., n. 14, 58, 514.
  • Mussett op. cit., n. 60, 58, 196.
  • Comer, op. cit., n. 52, 56, 864
  • Redfern Legal Centre, op. cit., n. 2, 65.
  • See also Frug, op. cit., n. 54, 1127.
  • Sue Wise and Liz Stanley, Georgie Porgie: Sexual Harassment in Everyday Life (1987).
  • Ibid, 204.
  • Ibid., 115.
  • E. A. Sheehy, Background Paper Personal Autonomy and the Criminal Law: Emerging Issues for Women (1987), 7, quoted in Graycar and Morgan, op. cit., n. 7, 42.
  • Carol Pateman, The Sexual Contract, 1988, 8.
  • Wishik, op. cit n. 85, 76
  • D. Allan and M. Hiscock, Law of Contract in Australia, Sydney: CCH (2nd ed. 1992) 358–9.
  • C. Turner, Yorston, Fortescue and Turner's Australian Commercial Law (19th ed.) 1992, 458.
  • Although there could be problems with the courts defining “benefit.
  • G. Muir, ‘Contract and Equity: Striking a Balance’ (1985) Adelaide Law Review 153, 164.
  • Naffine, op cit., n.31, 71.
  • O'Donovan, op. cit., n. 88, 147.
  • Morgan suggests that using a contextual approach is a way of making women visible: op. cit., n. 102, 756.

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