Ireland

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  2. Dr Patrick O'Callaghan
Author(s)O'Callaghan P, O'Donoghue A
Editor(s)Colombi Ciacchi, A; Weatherill, S
Publication type Book Chapter
Book TitleRegulating Unfair Banking Practices in Europe: The Case of Personal Suretyships
Year2010
Volume
Pages339-352
ISBN9780199594559
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This chapter aims to provide an overview of the legal framework in respect of non-professional suretyships in the Republic of Ireland. Our contribution is divided into two parts. The first part considers suretyship contracts both in a legal and practical context. We distinguish non-professional suretyships from indemnities and professional suretyships and examine issues such as consideration and the Statute of Limitations. We then draw on the replies to questionnaires we furnished to stakeholders and discuss the frequency of suretyships in Ireland and consider the circumstances in which a creditor will regard the provision of a suretyship as being fair. Part two looks at this question of fairness from the perspective of the legislature and courts and we trace the development of legal protection from unfair suretyships. In particular, we examine the protection offered by the equitable doctrine of undue influence, consumer credit law, the unfair contract terms regulations and the constitution. We focus on the scarce case law on third party guarantees and argue that reliance on traditional common law doctrines means that the standard of protection offered to the vulnerable surety has traditionally been relatively low in Ireland. We argue that the increasing significance of consumer law and soft law in the banking sector can complement the existent common law doctrines and combine to provide a more wide-ranging protection for the surety. Further, while recognising the difficulties and concerns inherent in the interaction between constitutional rights and private law, we argue that the doctrine of direct horizontal effect of fundamental rights, which is an established part of Irish law, has the potential to enhance the current standing of the law.
PublisherOxford University Press
Place PublishedOxford
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