The First issue identified was that of whether or not Miss. Seashell is still liable for the $200,000.00 despite not signing the charge on her property but signing to the loan document. In the absence of a charge on the property equates to an absence of equitable interest to the Bank. This therefore means that the bank is unable to exercise its power of sale in order to recover it’s debt in default. Nonetheless, under the law governing contracts, it is established that the bank's contract with its customers are commercial contracts that are presumed by the courts to be legally binding. The promissory note and the guarantee in the amount of $100,000.00 are indeed contracts of the bank and are agreements established with the intent to create
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undue influence by husband for her to act as surety, a bank should ensure that a wife seek independent legal advice (Course Manual). Another case supporting Miss Seashell's case of Undue influence is that of Barclays Bank Plc v O’Brien and Another; HL 21 Oct 1993 where the bank should have know there was undue influence between the husband and the wife, where the wife was influenced to act as surety but Bank knowing this still executed the charge without advising her to seek independent legal advice …show more content…
As a law student that NBC has no valid case against Ms. Seashell in pursuit of the $200,000.00, given that she did not sign the charge to give the Bank legal hold over the property, thereby relinquishing the NBC's power of sale. The Contract is also not binding under the Contract Law of Capacity to make contract, as Ms. Seashell is mentally unsound to enter into a legally binding contract. There was also undertones of undue influence by her then husband making the contract invalid under contract law section 12.12 undue influence. However I would advise the Bank to pursue charges against the solicitor Mr. Sharkface for negligence and the resulting damages under the laws of fiduciary duty. The bank is also entitled to the promissory note of $100,000.00 signed by the couple under the law of bill of exchange & negotiable instrument. The allegations by Miss Seashell's family to sue cannot be substantiated in Court, as the bank is within its right to refuse to disclose information under the Banking
undue influence by husband for her to act as surety, a bank should ensure that a wife seek independent legal advice (Course Manual). Another case supporting Miss Seashell's case of Undue influence is that of Barclays Bank Plc v O’Brien and Another; HL 21 Oct 1993 where the bank should have know there was undue influence between the husband and the wife, where the wife was influenced to act as surety but Bank knowing this still executed the charge without advising her to seek independent legal advice …show more content…
As a law student that NBC has no valid case against Ms. Seashell in pursuit of the $200,000.00, given that she did not sign the charge to give the Bank legal hold over the property, thereby relinquishing the NBC's power of sale. The Contract is also not binding under the Contract Law of Capacity to make contract, as Ms. Seashell is mentally unsound to enter into a legally binding contract. There was also undertones of undue influence by her then husband making the contract invalid under contract law section 12.12 undue influence. However I would advise the Bank to pursue charges against the solicitor Mr. Sharkface for negligence and the resulting damages under the laws of fiduciary duty. The bank is also entitled to the promissory note of $100,000.00 signed by the couple under the law of bill of exchange & negotiable instrument. The allegations by Miss Seashell's family to sue cannot be substantiated in Court, as the bank is within its right to refuse to disclose information under the Banking