The court also looked whether Mr Henshaw's actions (thus the State Bank of NSW) were unconscionable and whether the bank was in breach of s A of the Trade Practices Act 1974 (Cth) (TPA)21 The Court found that the actions of Mr Henshaw, therefore, the State Bank of New South Wales were unconscionable in the way the mortgage documents were handled and no information was supplied to Mrs Begbie to ensure that she was fully informed as to the purpose of the loans and where the monies were to be channelled.
In relation to s A of the TPA the court found the bank was not in breach because the "reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. " The Court found that Mrs Begbie signed the documents of her own free will and Mr Cheers had not acted with either duress or undue influence towards her. Economic Theory The world has limited resources, so it would seem logical that the limited resource should be attracted to the parties who would value them the most.
This could be accomplished in economic terms by freely exchanging the resources, with the role of contract law ensuring "maximise market efficiency" by achieving exchanges that are done in a free way while keeping the costs of the transactions to a lowest amount. It is often viewed in economic analysis that when entering in to a contract situation individuals do not have much regard for the interests of other individual, nor do they take a lot of notice of the "contract doctrine itself".
Instead they are more interested in consistent results that remain within a set budget. Parties to contracts would hope for a "theoretically complete contract" that cover every "possible contingencies", including cost of transactions and negotiation, while avoiding some terms and including others to enhance the bargaining power. Economic analysis assume that Individuals who enter into contracts are seen to do so on a voluntary basis causing the transfer of goods or services to other parties that place a higher value on them.
However, economic analysis does not assume that all parties are rational, but it hopes that given the ratio of rational and non-rational individuals everything will even out in the long run. The economic functions of contract law are four fold that promotes economic efficiency. The four functions are "containing opportunism in non-simultaneous exchanges", "reducing transaction costs","filling gaps in incomplete contracts" and "distinguishing welfare enhancing and welfare reducing exchanges".
Contract law is valuable to parties of contracts because of a number of reasons, including, the enforcement of a contract where one party may want to renege or refuses to perform for various reasons or it will ensure that damages are paid to the other party in the event that the contract is unenforceable. It will also work to reduce transaction costs by "supplying a number of implied terms" that applies to all contracts saving the parties the cost of having to draw up a contract that cover every perceivable term.
Contract law will also ensure that incomplete contracts have the gaps filled in to ensure that parties are covered. The final function of contract law is to discourage transactions that are not efficient because of the down turn or failure in the market or when one party has been misled or had unnecessary pressure to enter the contract. Economic analysis is about drawing attention to the broader functions of contract law rules and ensuring that those rules function in "either encouraging or discouraging effective outcomes, rather then the results in a particular case".
In the Begbie case the court upheld the economic analysis by ensuring that Brokken and Cheers remained responsible for payment of the loan in order to ensure economic constancy, while protecting Begbie from the unconscionable actions of the bank. The court in Begbie did not strike down the whole contract but rather only Mrs Begbie's part of it, while upholding Brokken and Cheers' part in the remaining contract, this worked to ensure that the debt would be paid thus ensuring the overall effectiveness of the rule was upheld.
Feminist Theory In the legal system there would appear to be a leaning towards what could be called the normal or reasonable person. This normal or reasonable person is used as benchmark in decisions in many cases. This benchmark person has a tendency to be what Margaret Thornton describes as the "Benchmark Man". The "Benchmark Man" is usually an "Anglo-Celtic, heterosexual, able-bodied and middle class" male and "he epitomises reason and rationality".
Ms Thornton says that many judges "fall into this category of the Benchmark Man, who is seen to epitomise objectivity and neutrality and reasonableness". She goes on to say that in "each instance of the conjunction of the feminine and corporeality serves to reaffirm the normative linkage between the masculine and rationality". The use of the benchmark man in decisions in the court only emphasises "injustices experienced by women flowed not mainly from gender-based distinctions in the law, but from subordination to men in society and its parallel legal culture of patriarchy".
The benchmark man concept is so ingrained in to the legal system that anything outside the "whiteness and maleness" operates to disadvantage victims and often because this would appear to be the norm and society accepts it without question. 50 It would appear that though-out history, in the legal system, there has been a trend of persistent male dominance that is "metaphysically nearly perfect" and it has been the "standard point of view for point-of-viewlessness", causing "the voice of women's silence".
However, many feminists are turning the tide of legal thinking with the view that "the difference between women and men are not biologically compelled they are, rather, 'socially constructed'". This is an important step towards equal treatment of women and men before the courts. Many feminists believe that women "should be treated as choosers, capable of exercising free choice and living with the consequences just like men", so therefore, are capable of entering into legal agreements with equality and on the same footing as men.
However, the courts often view male and female differently because of things like ability to give birth and even sexual intercourse, thus separating them into two separate groups. It is known that males and females do approach situations differently, with women often thinking of others before themselves when making decisions which could greatly alter the outcome of legal relations substantially. When in a relationship a female more likely to be open to duress, undue influence or even unconscionability as she is more likely to be pressured to 'trust' her partner's decisions.
In recent history there has been evidence to suggest that, before the law, the position of a women has not greatly changed and it could be seen that if there is social inequality it only follows that there will be legal inequality which will be a restraining influence in allowing women access to "the legal system on an equal basis with men". Injustice towards women is often two parts, "the individual bias of the judges and "the systemic bias of the legal system".
Feminists believe that historically the law has been influential in women subordination and they seem to be tyring to explain why this has occurred. It is through law reform and reforming legal approach to gender, feminists and proponents of feminist legal theory are working to change the status of women. In 1983 the court rejected the 'special equity' doctrine for wives in Yerkey in favour of the doctrine of unconscionability in the Amadio61 decision.
Then in 1998 the High Court reinstated the Yerkey principle in the Garcia63 case. This could indicate that the High Court still presumes that women need 'special equity' and the court's views are not gender-neutral but rather gender-specific and the concept of 'sexual transmitted debt' is perceived as a 'women's problem'. 65 However, the courts will look at both the 'special equity' doctrine and the doctrine of unconscionability on a case by case basis in order to determine an outcome that is appropriate to the parties involved.
66 It would appear from the Garcia case that the principles in Yerkey are also relevant for relationships other than marriage such as de-facto, same-sex which are common place in today's society. 67 In the Begbie68 case the court examined the actions of the Bank and found they had acted unconscionable in their dealing with the mortgage documents as they did not ensure the Mrs Begbie received appropriate information to ensure that she was informed sufficiently about where the loan monies where being channelled and about what she was signing.
The court did not consider that the 'special equity' doctrine was relevant but rather followed the Amadio70 decision of "equitable doctrine which entitles a party to seek relief against unconscionable conduct".There have been a number of subsequent cases that equitable doctrine has also been followed. It could be argued that the decision in the Begbie case was in line with the feminist view that women should be treated as equals before the courts and therefore the decision handed down was equitable and fair. Conclusion
The economic outcome of the Begbie case is in line with the economic analysis theory that is concerned with the over all outcome rather than that of an individual. This can be seen in that while Mrs Begbie's part of the contract was struck down, Mr Brokken and Mr Cheers parts were up held and they remained responsible for the payment of the loan thus ensuring the overall economic outcomes was one of efficiency. Mrs Begbie was protected from the unconscionable actions of the bank by the courts77 through, what could be argued by feminists as, equality before the court.
The court considered Mrs Begbie to be an educated person with a free will to act on her own behalf. 78 However, she was a victim none the less, "although not an overly easy victim",79 which ensured that she received justice. The doctrine of unconscionability80 goes a long way to ensure that a female party to a contract, where there has been unconscionable actions on the part of the other party, will receive a fair and equitable outcome that is gender-neutral rather than gender-specific.