It seems clear from the cases that independent advice can play a role where the lender or creditor attempts to argue that a guarantor or surety has entered into a guarantee in an act of free and independent will, and is aware of the nature and effect of such a security. The purpose of independent advice in this context is to ensure that the guarantor understands the nature and effect of the transaction and the documents to be signed. This article critically analyses the importance of the surety procuring independent advice before executing the contract of guarantee. It examines some of the evolving problems with independent advice and whether the presence of such advice can actually be used to protect a guarantee transaction from the taint of, for example, unfairness. It also considers whether current ideas of what constitutes independent advice are in general adequate to form the basis of an effective protective regime for guarantors.
Chew, Charles Y C
"Another Look at the Giving of Independent Advice to Sureties: Some Uncertainties and Evolving Concerns,"
Bond Law Review:
1, Article 4.
Available at: http://epublications.bond.edu.au/blr/vol18/iss1/4