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Reconciling the obligations to divulge information to financial institutions and the duty of secrecy: legislative responses and comparative perspectives: part 2

Journal Article


Abstract


  • A creditor under the common law in Australia, as shown in the previous article (Part 1), 1 is not under a duty to reveal

    all facts with regard to the debtor and the loan that would be relevant to the decision of the surety or guarantor to

    give a contract of suretyship or guarantee. The law relating to guarantees requires, inter alia, "disclosure of facts only

    if concealment of those facts would otherwise misrepresent the transaction which the guarantor is undertaking as the

    guarantee". 2 The leading case in respect of the bank's duty of secrecy or confidentiality is found in Tournier, 3 where

    it was held that there is an implied term in the contract between a banker and customer that the information obtained

    relating to the customers and their accounts should not be disclosed to third parties such as guarantors. In this case, Banks

    LJ spelt out the exceptions available for bankers to disclose particular information about their customers-these being

    "where disclosure is under compulsion by law; where there is a duty to the public to disclose; where the interests of the

    bank require disclosure; and where the disclosure is made by the express or implied consent of the customer". 4

Publication Date


  • 2017

Citation


  • C. Y.C. Chew, 'Reconciling the obligations to divulge information to financial institutions and the duty of secrecy: legislative responses and comparative perspectives: part 2' (2017) 28 (8) International Company and Commercial Law Review 283-290.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/3105

Number Of Pages


  • 7

Start Page


  • 283

End Page


  • 290

Volume


  • 28

Issue


  • 8

Place Of Publication


  • United Kingdom

Abstract


  • A creditor under the common law in Australia, as shown in the previous article (Part 1), 1 is not under a duty to reveal

    all facts with regard to the debtor and the loan that would be relevant to the decision of the surety or guarantor to

    give a contract of suretyship or guarantee. The law relating to guarantees requires, inter alia, "disclosure of facts only

    if concealment of those facts would otherwise misrepresent the transaction which the guarantor is undertaking as the

    guarantee". 2 The leading case in respect of the bank's duty of secrecy or confidentiality is found in Tournier, 3 where

    it was held that there is an implied term in the contract between a banker and customer that the information obtained

    relating to the customers and their accounts should not be disclosed to third parties such as guarantors. In this case, Banks

    LJ spelt out the exceptions available for bankers to disclose particular information about their customers-these being

    "where disclosure is under compulsion by law; where there is a duty to the public to disclose; where the interests of the

    bank require disclosure; and where the disclosure is made by the express or implied consent of the customer". 4

Publication Date


  • 2017

Citation


  • C. Y.C. Chew, 'Reconciling the obligations to divulge information to financial institutions and the duty of secrecy: legislative responses and comparative perspectives: part 2' (2017) 28 (8) International Company and Commercial Law Review 283-290.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/3105

Number Of Pages


  • 7

Start Page


  • 283

End Page


  • 290

Volume


  • 28

Issue


  • 8

Place Of Publication


  • United Kingdom