Mortgages, seniors and the common law contractual doctrine of mental incapacity in Australia

Seniors in Australia are being called upon to mortgage their most precious economic asset, the family home. They may be asked to guarantee the liabilities of other family members by providing a mortgage-based guarantee or they may decide to enter into a reverse mortgage to supplement financially their savings and pensions. As the family home is the single most valuable asset for most older Australians, the creation of any obligations in regard to it ought to be undertaken with care and vigilance. While seniors are free to create mortgages, they may lack the capacity to understand the legal ramifications of these complex transactions or be unable to protect their interests when entering into them. It is not suggested that older Australians necessarily suffer a lack of contractual capacity. Many seniors are more than able to take care of their interests and assets. However, some seniors do suffer cognitive impairment which adversely affects their capacity to act in their best interests and to navigate the complexities of contractual relations. In contract and mortgage law, this raises the issue of mental incapacity.For centuries, the common law has recognized not only that mentally incapacitated people exist, but that they may enter into contracts such as mortgages and may later wish to have the mortgage set aside. The present formulation of the contractual doctrine of mental incapacity is the product of 19th century jurisprudence in which the courts framed the doctrine to accommodate commercial dealing rather than the interests of persons who lacked the necessary mental capacity. Accordingly, the doctrine has been very difficult to rely on successfully when challenging mortgages made by persons lacking capacity. Therefore, Australian litigators and courts alike have sought to deal with mental incapacity issues in the contractual context by using and modifying other doctrines (such as non est factum, undue influence and unconscionable dealing) in which the issue of capacity may be incorporated, but where mental incapacity need not be the sole or primary focus. While this had led to greater success for mortgagors, this has been at the expense of the common law doctrine. The article concludes by offering some suggestions as to how the doctrine may be modernized and mental capacity dealt with in a way both to empower competent seniors and protect those vulnerable seniors suffering cognitive impairment.     

Leadership in Local Government: ‘No Girls Allowed’

This article explores the under‐representation of women at the Chief Executive Officer (CEO) levels of Western Australian (WA) local government. It draws on data collected from 21 second tier senior women managers about their perceptions and experiences of leadership within the sector, as well as their aspirations for CEO appointment. By applying critical gender analysis to the data, gender and specifically masculinity emerges as a significant and valued leadership attribute. While this analysis is not unique to local government, what sets the sector apart is its apparent disinterest in examining the reasons for, or the impacts of this continued leadership stereotype when at the same time Australian public and private institutions are challenging these traditional leadership models. This article points to fundamental weaknesses in the formal power structures and processes of local government that support deeply embedded biases about leadership. Perhaps the most significant contributor to these outcomes that emerged from the study is the apparent unencumbered power of Mayors and elected members over all aspects of CEO employment, especially recruitment.     

Public Attitudes to Gaelic and the Debate about Scottish Autonomy

Scotland seems to be a counter-example to general theories of the relationship between language and national identity or nationalism. These theories point to three components in the ideology of language and nation—that being able to speak the national language is necessary for full national membership, that the national language is a core part of the nation's culture, and that the future of national political autonomy and the future of the national language are connected with each other. In Scotland, it has appeared that language is not central to national membership or culture, and language campaigning has not been central to the political campaigns for autonomy. The article presents new evidence, from the 2012 Scottish Social Attitudes Survey, which questions these beliefs about the relationship between language and national identity or nationalism in Scotland.     

Third molar development in a London population of White British and Black British or other Black ethnicity

Population differences in dental development between Black and White ethnic groups have been debated but not previously studied in the UK. Using inappropriate data for dental age estimation (DAE) could lead to erroneous results and injustice. Data were collected from dental panoramic radiographs of 5590 subjects aged 6–24 years in a teaching hospital archive. Demirjian stages were determined for left-sided teeth and third molars and data collected regarding hypodontia and third molar agenesis. Third molar development in self-assigned Black British, including other self-assigned Black ethnicity, was compared with that of self-assigned White British subjects. Data were compared for males and females in the two ethnic groups using T-tests for Demirjian Stages A–G of third molar development and Mann-Whitney tests for Stage H once a cut-off age at the maximum age for Stage G had been imposed. Third molar development occurred earlier in subjects of Black ancestry compared to those of White ancestry. While both ethnic groups showed large age ranges for every third molar stage, in female subjects these generally occurred at least 1.5 years earlier, and in males at least one year earlier. Hypodontia and third molar agenesis were more prevalent in White British, but the ethnic difference in third molar development persisted in subjects with complete dentitions. This is a large study that confirms ethnic differences in a London population, emphasises the difficulties of establishing the 18-year-old threshold using DAE, and confirms the risk of overestimating the age of individuals of Black ethnicity using White ethnic reference data.     

The Feminisation of Finance

Abstract

This article focuses on recent reconfigurations of the home as a space of financial calculation and speculation that requires new kinds of domestic labour. It considers the 2008 financial crisis, but redirects the analysis towards the ordinary and normalised presence of financial capitalism at the level of domesticity, home-life and the everyday ‘calculative agencies’ which households are now regularly called on to perform. It also examines the constitution of ‘women’ as a target group for personal financial products and services, and addresses the various strategies that promote financial inclusion as a means to secure individual responsibility, autonomy and entrepreneurial consumer participation in a financialised ownership society. The article argues that this feminisation of finance suggests a considerable challenge to received understandings of the relationships between gender and economy, production and reproduction, and life and labour.