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Cautionary Tales—the Continued Development of Smith v Bank of Scotland

2003; Edinburgh University Press; Volume: 7; Issue: 1 Linguagem: Inglês

10.3366/elr.2003.7.1.107

1755-1692

Sandra Eden,

Legal principles and applications

Only five years have passed since Smith v Bank of Scotland' in which the House of Lords introduced into Scotland the special protection available to cautionary wives.2In this period, there have been several further decisions in Scotland in this area and the House of Lords has also returned to the topic.3The first decision of the Inner House, Clydesdale Bank pic v Black, provides an opportunity to review Scots law developments and to consider the extent to which there remains a distinctive Scottish approach.The background to this line of cases is well known.Previously, it was accepted in both jurisdictions that the creditor's rights against the cautioner were not in general affected by the misrepresentations or other wrongful acts of the debtor in relation to the cautioner.Then, in 1994, the House of Lords in Barclays Bank pic v O'Brien* released a surety wife in England from a guarantee which she had signed on the faith of her husband's misrepre- 1 1997 SC (HL) 111 (henceforth Smith).There has been a considerable amount of literature generated by Smith and subsequent cases, e.g.: