redressing some harsh practices336 However it has also pointed to the lack of a specific Act to
deal with that problem such statutes to regulate what fairness is The Bank of Uganda (The
Central Bank) supervises commercial banks337 and determines the interest rate on loans
However any attempt to regulate prices would go against the thrust of the market economy and
interfere with attempts to encourage competition and if left to the courts judges would be
making economic decisions for banks338 Given the difficulties proponents of regulation thus
often point to the value of general legislation imposing a broad standard which can catch
The Contracts Act No7 of 2010 provides a model for a general legislative approach to
unconscionable behaviour But this work has pointed to considerable criticism of the section in
particular that it lacks a rigorous methodology340 Given that it can be invoked by banks and
customers the need for a rigorous methodology is important The complexity of commercial
contracts ought not to allow for them to be readily overturned by the courts It can appear trite in
this area to appeal for certainty yet banks obviously do require certainty of legal rules and
consistency in their application341 In Uganda the Parliament has been reluctant to extend
336 For example The Bank of Uganda Financial Consumer Protection Guidelines and the Code of Banking Practice June 2011 337 See The Financial Institutions Act of 2004 which was amended by the Financial Institutions Amendment Act 2016 Section 79 338 For example see the decision of Batt in the case of Olex Focas Pty Ltd v Skodaexport Co Ltd at p 356 where he stated the principle that ldquothat people should not by an appeal to strict legal rights cause hardship to others by violating their reasonable expectationsrdquo and also that
of Allsop in ACCC v Lux case where he said ldquothat the task of the court is the evaluation of the facts by reference to a normative standard of consciencerdquo 339 See the decision of Allsop in the case of ACCC v Lux Distributors [2013] FCAFC 90 at 23 where he said ldquoThat the existence of State legislation directed to elements of fairness is a fact to be taken into accountrdquo 340 See the Contract Act 2010 of Uganda 341 See The Bank of Uganda Act Cap 51 Section 2 (3) generally where it provides that a bank
89
general legislative relief for unconscionable conduct to banks342 Hence although there was a
review of the Contracts Act No7 of 2010 to include reliefs to businesses and persons affected by
unconscionability this was not forthcoming Similarly the widening of the unconscionability
provisions of the Mortgage Act in the form of has not greatly enlarged the scope for business and
bank customers to seek redress for harsh bargains343 Outside the supply of consumer goods and
services where there is scope to examine the terms of supply themselves relief is linked to the
equitable doctrine which so far depends on a special disadvantage For this reason as the law
stands in Uganda unconscionable conduct used in the sense of the principles developed in
Blomley v Ryan and Amadio holds only small comfort for businesses and bank customers faced
with harsh contracts344
56 Conclusions
Despite the findings and the recommendations that have been analyzed in this thesis and the
various reforms and amendments that have been made in the Financial Institutions Act 2004
which was amended by the Financial institution Act 2016 though they are going to help to build
and strengthen bank and customer relationship still much is needed when it comes to the
contract Act 2010 which also still needs some amendments and reforms in order to cater for the
issue of unconscionable transactions in banking it is submitted that the recent development in
the law of banking brought about by this thesis is merely bringing it into line with what
laypersons would assume it to be and always to have been At this note it is important to echo
verbatim some of the preambles of statutes that regulate banking business in Uganda such as the
Bank of Uganda Act Cap 51 the Financial Institutions Act 2004 respectively The Act clearly
provides that it intended ldquoto amend and consolidate the bank of Uganda Act for regulating the
issuing of legal tender maintaining external reserves and for promoting the stability of the
currency and a sound financial structure conducive to a balanced and sustained rate of growth of
the economy and for other purposes related to the aboverdquo This statement shows that with a
better banking the economy can grow and it called for a conducive financial structure in order
342 For example both the Contract Act 2010 and the Financial Institutions Act of 2004 which was amended by the Financial Institutions Act 2016 does not have a general relief for
unconscionable conduct 343 See generally the Mortgage Act 2009 of Uganda 344 [1956] HCA 81 (1956) 99 CLR 362 and (1983) 151 CLR 447 (respectively)
90
to promote bank customer relationship in Uganda then why banks keep on promoting bad
banking practices such as unconscionable dealings in banking transactions
Furthermore the Financial Institutions Act 2004 is An Act that was meant ldquoto revise and
consolidate the law relating to financial institutions in order to provide for the regulation
control and discipline of financial institutions by the Central Bank and to repeal the Financial
Institutions Act Cap 54 and to provide for other related mattersrdquo despite the provision that other
related matters of banking in its literal meaning the issues of unconscionable transactions in
banking was not fully tackled But still despite this law being in place customers of banks have
continued to be cheated and made to sign Contracts which they do not understand and worst of
all not advised to always seek independent professional legal advice whenever they are
negotiating transactions with their banks and the banks that have been identified of doing this to
its customers some have gone unpunished or have not faced any disciplinary action from the
bank of Uganda
The object of the bill 2015 to amend the Financial Institutions Act 2004 was to provide for
Islamic banking to provide for banc assurance to provide for agent banking to provide for
special access to the credit reference Bureau by other accredited credit providers and service
providers to reform the deposit protection fund and for related purposes Despite the several
repeals that have been made in the Financial institutions Act to replace the Financial Institutions
Act Cap 54 and that of 2004 it was enacted among other things to address the crisis in the
banking sector of the late 1990rsquos that resulted into the closure of several commercial banks The
crisis in the banking sector at the time was largely attributed to the loopholes in Cap 54 but still
despite the several amendments that Uganda has made in this Act for instance the Financial
Institutions Act 2004 which was amended by the Financial Institutions Act 2016 did not
comprehensively deal with the issue of unconscionable transactions in banking hence calling for
another amendment in the same law Uganda parliament is argued to avoid repeating the same
mistakes that has kept for many years the banking sector in Uganda to remain in crisis for
instance cap 54 also did not deal with the issue of restrictions to shareholding and directorsrsquo
insider borrowing which lead to the collapse of many commercial banks because the capital of
the banks was returned to the shareholders of the banks hence putting depositors who are the
customers at risk of losing their deposits Even at the time of enactment of the Financial
Institutions Act 2004 and the several amendments in Act 2016 it was considered adequate in
91
ensuring that Financial Institutions were better regulated and more properly managed than was
the case prior to its enactment If the issue of unconscionable transactions in banking is not a
gently dealt with it will delay Uganda to achieve its economic growth hence leading to further
subsequent problems in years to come in the banking sector Therefore the reform process
should have started yesterday And it is in this vein that the researcher suggests for the following
recommendations
57 Recommendations
Having critically analyzed the various laws and regulations put in place to fightcontrol
unconscionable transactions in banking It is on this note that this thesis would like to
recommend that both the banks and its customers should make use of the following
recommendations below The following recommendations may assist businesses and customers
to avoid becoming a victim of unconscionable conduct345
571 Legal reforms
5711 Proposal for legislation to control bank customer relationship
At present in Uganda there is no law that regulates bank and customer The relationship is purely
controlled by custom and common law The banker and customer relationship is a contractual
relationship based on a contract between the parties346 As a contractual relationship it is
governed by contract law347 Besides the contract Act 2010 which does not provide the customer
with the protection he or she requires against the bank348 Much of the law on bank customer
relationship is based on English common law There is a need to codify common law principles
Therefore Ugandan courts should do exactly what the Israeli courts did by adopting a unique
approach in determining that the banking contract is a special contract (a fiduciary contract)349
345 Article available at httpswwwacccgovAustrialian Competition amp Consumer Commission
(Anti-competitive behavior) accessed on October 2nd 2015 also see Unconscionable Conduct in business-margaret RiverhellipArticle available at wwwmargretriverbusinesscomgtArticles
Accessed on October 2nd 2015- Some practical tips to avoid becoming a victim of unconscionable conduct 346 EP Ellinger E Lomnicka ldquoModern Banking Lawrdquo (2011) 5th Edition 347 Ibid 348 P S Ruth ldquoThe Bankrsquos fiduciary Dutyrdquo (2007) 36 Common L World Rev at 27 349 Ibid
92
Under a fiduciary contract the bank as a fiduciary is subject to a fiduciary duty vis-agrave-vis the
beneficiary the customer350 The fiduciary duty imposes a very high standard of behavior on the
bank much higher than the standard imposed on it under contract law By adopting a fiduciary
approach the customer is granted very wide protection against the bank
However the implementation of the existing contract law in the banking context creates a
problem The Contract Act 2010 does not take into consideration situations of inequality of
power between the parties351 Contract law determines arrangements that seek to balance the
interests of the contracting parties based on the presumption that they are equal in power352 In
situations of a serious power disparity between the parties these laws do not provide any
particular protection for the weaker party The bank customer relationship is characterized by a
huge inequality of power and therefore the Contract Act 2010 is not an appropriate tool for the
regulation of this contractual relationship353
5712 Legislating Bank and Customer relationship in the area of unconscionability
Legislation is the strongest and broadest weapon in the arsenal of any government for the
regulation of general trading activities of corporations and Banks Legislation can among other
things regulate a wide range of activities relating to provision of financial products as well as the
provision of advice above financial products Legislation also prohibits misleading and deceptive
conduct and unconscionable conduct in relation to financial services provided to certain
customers354 In the area of unconscionability there should be recent legislative enactments in the
area of contracts and banking to give important statutory force to the common law provisions
For instance to
a) Clarify the application of the common law to certain areas
b) Bring the matter within the legislation which would ensure compliance within those
areas
350 Ibid 351 Ibid 352 F Daniel amp N Cohen ldquoContractsrdquo (1991) at pages 59-128 353 Ibid 354 See Cardozo ldquoShaping Law and Legal Valuesrdquo the nature of judicial process (1921)
Newhaven Yale University Press at pp 104-5
93
c) Ensure that the remedies like injunctions and other orders are available for infringements
of the unconscionability provisions but not damages
This statutory adoption of the common law principles would incorporate further developments in
this area and may lead to a somewhat wider effect The suggested legislation should include
unconscionable conduct within its ambit widens the potential for commercial plaintiffs to bring
an action under the suggested act for unconscionable conduct to protect consumers be extended
to undue influence and allows the court to consider range of factors which go beyond the narrow
view of unconscionable conduct as found in Blomley v Ryan and Commercial Bank of Australia
Ltd v Amadio355
5713 Transformation of the old rules of contract law
Uganda is a common law country and is still in the good old days of ldquocaveat emptorrdquo which
suggests that a party to a contract could look after their own interests but had no obligation to
the other party beyond the duty not to actively mislead the other party That ldquoconsiderationrdquo must
be present but that it did not need to be ldquoadequaterdquo consideration356 That ldquointentionrdquo to contract
was to be determined ldquoobjectivelyrdquo357 Those obligations did not arise until the ldquomeeting of
mindsrdquo had occurred whereby the parties became contractually bound to each other358 And of
course ldquoprivity of contractrdquo meant that only those who were party to the contract could be
obligated by it or obtains rights in respect of it359
However this should be very far removed from the ldquorulesrdquo of contract law as stated in the
previous paragraphs Indeed unconscionability should not in fact be part of contract law at all
like the law of negligence it should be a new area of ldquoobligationsrdquo The idea of
355 Ibid 356 See Benjamin ldquoBenjaminrsquos Sale of Goodsrdquo (4th edn (Guest AG Ed) Sweet amp Maxwell-
London 1994) 357 Ibid 358 Steyn in the Case of Mannai Investment Co v Eagle Star Life Assurance [1997] AC 749 HL (as reported in Contract Law Cases and Materials at page 334) when he said ldquothat a Commercial Construction is more likely to give effect to the intention of the parties Words are
therefore interpreted in the way in which a reasonable Commercial person would construe themrdquo 359 See F Cheshire and Furmstons ldquoLaw of Contractrdquo (12th edn Butterworths 1991)
94
unconscionability to derive new legal rights in the absence of a pre-existing legal relationship (as
no contract was ever formally concluded) The element which both attracts the jurisdiction of the
court and shapes the remedy is unconscionable conduct on the part of the person bound by the
equity the courts should go no further than is necessary to prevent unconscionable conduct A
definitive definition cannot be given of unconscionable conduct360
5714 Broadening of the common law principle to avoid discriminatory categories
At common law the old rules of the contract were ldquofor example gender biasrdquo where women
were automatically regarded as suffering from some ldquodisabilityrdquo Clearly this is unacceptable
The principle involved here should be more broadly expressed to encompass all people who are
involved in relationships of dependency361 It is not necessary for them to decide whether same
sex relationships and de facto relationships are intended to be also covered by this principle All
should be so covered by the principle Some discriminatory aspects of that kind should be
removed and that the concepts of the law should be re-stated in more general terms362
5715 Inclusion of Unconscionable Conduct in the Financial Institutions Act 2016
The unconscionable conduct was not included in the Financial Institutions Act 2016 The
legislators left unconscionable conduct unmentioned in the said Act363 Unconscionable
dealing looks to the conduct of the stronger party in attempting to enforce or retain the benefit
of dealing with a person under a special disability in circumstances where it is not consistent
with equity or good conscience that he should do so364 The adverse circumstances which may
360 See the case of Tonto Home Loans Australia Pty Ltd (2011) 15 BPR 29 699 [2011] NSWCA 389 His honour summarized the relevant Law as follows ldquothat the concept of
Unconscionable in this context is wider than the general Law and the provisions are intended to build on and not be constrained by cases at General Law and equityhellip it is neither possible nor desirable to provide a comprehensive definition That a finding requires an examination of all
the circumstancesrdquo (Per Batharst and Campbell) 361 See Janson v Janson [2007] NSWSC 1344 362 For example see how it is provided under the Code of Banking Practice June 2011 Section 3 (31) that the bank will not unfairly discriminate against a customer on the grounds of marital status gender age or race in providing a customer with banking services 363 See the examination of the word lsquoUnconscionablersquo in Butterworths Australian Legal Dictionary (1997) 364 See Atkins v National Australia Bank (1994) 34 NSWLR 155
95
constitute a special disability for the purposes of the principle relating to relief against
unconscionable dealing may take a wide variety of forms and are not susceptible to being
comprehensively catalogues the common characteristic of such adverse circumstances seems to
be they have the effect of placing one party at a serious disadvantage vis-a-vis the other365
572 Institutional framework of the banking sector
5721 Need to Emphasize Independent professional legal Advice
In the banking arena while not as frequently encountered as in the consumer arena there is
overlap between inequality of bargaining power undue influence and lack of independent advice
and this is seen most clearly with regard to contracts of guarantee and surety ship Two issues are
raised in such contracts whether there is understanding of the state of the business or persons
being guaranteed and whether there is understanding of the effect of the guarantee on the
property of the third party While the fact of lack of independent advice may be indicia of
unconscionable conduct it is hardly proof nor does it necessarily mean that the resulting
transaction is either unfair or unconscionable But given the cases which point to lack of
independent advice as a factor advising the guarantor to obtain advice is one of the simplest
protective devices against a charge of unconscionable conduct when issues of both capacity and
contractual terms are raised If the advice has been obtained then the defendant may be able to
resist claims of harsh or unfair terms or that they have taken advantage of the lack of
knowledgebusiness acumen of the other party For this reason a requirement that independent
advice be obtained is typically found in the Mortgage Act and the Regulations made there
under366
365 See the case of Commonwealth v Verwayen (1990) 170 CLR at 441 366 See generally the Mortgage Act 2009
96
5722 Credit providerrsquos responsibilities
Credit provider must take reasonable steps to ensure that the surety has entered into obligation
freely and in knowledge of the true facts367 The credit provider must avoid being fixed with
ldquoconstructive noticerdquo of any defect368 To avoid this the credit provider should
a) Warn the surety of the amount of the potential liability
b) Warn the surety of the risks involved to the suretyrsquos interests
c) Advise the surety to take independent legal [financial] advice369 ndash this should be done at
a meeting at which the principal debtor is not present370
d) Ensure that independent financial advice is taken where influence is probable and the
risks are large371 Only if this is done will the credit provider be safe and
e) Where a credit provider knows or ought to know of relationship involving emotional
dependence on the part of a surety to the debtor or where the surety reposes trust and
confidence in the debtor if the surety obligation has been procured by undue influence
misrepresentation or other legal wrong then the surety obligation will not be
enforceable372
5723 Need to Create the Trade Practices Commission
There is need to create a trade Practices Commission in Uganda Currently in Uganda
supervision is done by the Central Bank373 but an independent trade practices Commission is
necessary to strengthen the supervision There are factors which the Proposed Commission
367 The Code of Banking Practice Section 3 (31) provides that the bank will provide a customer
with effective and adequate disclosure of information including the terms and conditions of products and services 368 See Turner v Dunne [1996] QCA 272 at 4-5 369 See The Code of Banking Practice June 2011 Section 32 370 B Dee lsquoUnconscionable Conduct in Business Transactionsrsquo (1998) Director Liaison
Australian Competition and Consumer Commission Property Council of Australia Shopping Centre Conference Sydney 371 See Garcia v National Australia Bank (1998) 194 CLR 395 135 ALR 614 372 C Stewart ldquoUnconscionable Transactions Undue Influence and Constructive Trustsrdquo 373 See The Financial Institutions Act of 2004 which was amended by the Financial Institutions
Amendment Act 2016 Section 79
97
should consider in determining when it will intervene374 an apparent blatant disregard for the
law that the conduct involved significant public detriment that successful enforcement would
have a significant deterrent or educational effect or that an important new issue is involved eg
one arising from economic or technological change375 It is submitted that with regard to
unconscionable conduct in the banking arena the greatest potential for intervention is likely to
come from the educational factor The public detriment is not likely to be a major factor in this
area except in the wider public policy sense376
5724 Judicial Intervention in Unconscionable Bargains
In appropriate circumstances where in respect of money lent having regard to the risk and all
circumstances the cost of the loan is excessive and that the transactions is harsh and
unconscionable the court should re-open the transaction and take an account between the
creditor and the debtor order the creditor to repay any such excess if the same has been paid or
allowed on account by the debtor or set aside either wholly or in part or revise or alter any
security order the creditor to indemnify the debtor377
5725 Supervision
The Bank of Uganda (Central Bank) should issue guidelines in the area of Unconscionable
Conduct in Banking and identify market practices presence of negotiation purpose of conduct
and prior dealings between parties as relevant considerations in determining whether a party had
acted unconscionably378 Supervision and monitoring will go a long way in addressing the
problem of unconscionable conduct in the banking sector Whilst standard form contracts are
often beneficial in minimizing the amount of time spent in negotiating and may produce greater
certainty they may provide little or no scope for negotiation on important matters Use of take it
374 See the guidelines entitled ldquoUnconscionable Conduct in Commercial dealingrdquo issued in
October 1993 by the Trade Practices Commission 375Ibid 376 Ibid 377 See K John ldquoThe case against Unconscionable Conductrdquo International Real Estate Society Conference Kuala Lumpur 26- 30 January 1999 at p 6 also see L Wilson ldquoTrade Practices-
Unconscionable Conductrdquo Property Council of Australia Shopping Centre Conference 18 May 1998 Sydney 378 Ibid
98
or leave it contracts whether standard form or not may lead to unconscionable conduct if in the
particular circumstances pressure is brought to bear or unfair advantage is taken the terms of the
contract are onerous and the onerous nature is disguised by using fine print unnecessarily
difficult language or deceptive layout and the weaker party is asked to sign the contract without
being given an opportunity to consider or to object to such terms or is given a summary
explanation which does not mention them The Central Bank should therefore supervise
Commercial Banks in this aspect379
573 Bank and customer relationship
5731 Customers should fully understand all the Terms of the Transaction
Problems can arise where the documentation is complex and patently not understood by the party
required to sign Although there may be an assumption that people in business do have the
necessary understanding this assumption is open to challenge where there is an obvious lack of
understanding such as might come about where English is not the first language or the person in
business lacks education Where there are unusual features in the transaction the duty to disclose
or explain arises and failure to disclose may result in a finding of misrepresentation380 Unless
the financial institution takes unfair advantage of the lack of understanding there would be no
unconscionable conduct When one intends to obtain a banking service from any bank one
should read the terms and conditions for the services before heshe signs the contract381 Heshe
will then know what to expect from the bank and what the bank expects from himher before
becoming bound by the contract One can ask questions about any of the terms and conditions
that heshe does not understand to avoid misunderstandings during the course of the contract382
379 See The Financial Institutions Act of 2004 which was amended by the Financial Institutions Act 2016 Section 79 380 It is the provision of the Code of Banking Practice that the customer is entitled by the bank to provide him with information in a plain and understandable language format 381 See The Code of Banking Practice June 2011 Section 32 where it provides that it is the
responsibility of the customer to the bank for the customer to read and understand the terms and conditions 382 Ibid
99
5732 Customers should negotiate the outcome they want
In some of the more recent cases on unconscionability we certainly have to question the
appropriateness of language which refers to the so called stronger and vulnerable parties If the
apparently stronger party has to act ldquoresponsiblyrdquo in the interests of the vulnerable party then
how is this to be accomplished Business people have continued to hold to a traditional view
This is to the effect that you do not have a contract until you have a contract This suggests that
one party can impose contractual like obligations upon another unwilling party or at least shift
part of his risk onto them unless they act in some unspecified manner to prevent someone from
doing so This not only offends the traditional rules by which commercial agreements have been
established but also offends against common sense383
5733 Customers Should Read carefully the Agreements they Sign
Problems can arise where the documentation is complex and patently not understood by the party
required to sign Although there may be an assumption that people in business do have the
necessary understanding this assumption is open to challenge where there is an obvious lack of
understanding such as might come about where English is not the first language or the person in
business lacks education Where there are unusual features in the transaction the duty to disclose
or explain arises and failure to disclose may result in a finding of misrepresentation Unless the
financial institution takes unfair advantage of the lack of understanding there would be no
unconscionable conduct Customers should not therefore sign any agreements without reading
them carefully384
5734 How to avoid engaging in unconscionable conduct
The following practical tips may assist businesses to avoid engaging in unconscionable
conduct385
383 Ibid 384 Ibid 385Available at wwwmybusinesscomaunew-laws-around-unconscionable-conduct-7 New
laws around Unconscionable Conduct-7 tips forhellip a victim of unconscionable conduct Need not be at any special disadvantagehellipa written sales manual to train them on how to avoid
unconscionable conducthellipFeb 21 2012 Accessed on 20th November 2015 at 0915pm
100
The banks should not exploit the other party when negotiating the terms of an agreement or
contract they should take care to be reasonable when exercising their rights under a contract
they should consider the characteristics and vulnerabilities of their customers For example use
plain English when dealing with customers from a non-English speaking background and Banks
should make sure that their contracts are thorough easy to understand not too lengthy and do not
include harsh unfair or oppressive terms they should ensure that they have clearly disclosed
important or unusual terms or conditions of an agreement ensure that customers understand the
terms of any agreement associated with the transaction and give them the opportunity to consider
the offer properly If the contract is long banks may decide to provide a summary of the key
terms and
Furthermore always banks should observe any cooling-off periods that may apply or consider
offering a cooling-off period give customers the opportunity to seek advice about the contract
before they sign it if things go wrong be open to resolving complaints and Banks should not
reward their customers for unfair pressure-based selling the amendments to the Financial
Institutions Act 2016 should serve the banking sector well as they create more avenues for the
sector to offer more financial products to customers The amendments also serve to broaden the
scope of the banking sector as a whole and this is good for the industryrsquos financial inclusion
efforts as it helps to address the challenge of access to formal financial services
101
BIBLIOGRAPHY
Text books
Atiyah P S The Sale of Goods (6th edn Pitman 1980)
Bakibinga DJ Laws of Contract lsquoWhen Contra Proferentum Rule is Employed the Relevant
Terms of the Contract are Construed Against the Makerrsquo (2001)
Beatsonrsquos J and Anson Law of Contract (27th edn Oxford)
Benjamin Benjaminrsquos Sale of Goods (4th edn Guest AG (ed) Sweet amp Maxwell-
London 1994)
Cheshire Fifoot and Furmstons Law of Contract (12th edn Butterworths 1991)
Chitty on Contracts (22nd edn Volume 1)
Chuah J C T General Aspects of Lender Liability under English Law in W Blair (Ed) Banks
Liability and Risk (3rd edn London LLP 2001)
Cranston R ldquoPrinciples of Banking lawrdquo (2nd edn Clarendon Oxford University press 2002)
David Palfreman ldquoLaw of Bankingrdquo (Macdonald amp Evans Ltd LondonUK 1980)
Dr Robert N Moles ldquoRecent developments in unconscionabilityrdquo also see Meagher Gummow
amp Lehane Equity Doctrines and Remedies (3rd edn Butterwoths Sydney1992)
Ellinger E P ldquoReflections of Recent Developments Concerning the Relationship of Banker and
Customerrdquo (4th edn The Canadian Business Law Journal 1988) 129
Ellinger EP Lomnicka E amp Hooley R ldquoModern Banking Lawrdquo (4th edn Oxford Oxford
University press 2006)
102
Ellinger EP Lomnicka E and Hooley R ldquoModern Banking Lawrdquo (2th edn Oxford New York
1994)
Geraldine Mary Andrews and Richard Millet ldquoLaw of Guaranteesrdquo (7th edn Sweet and Maxwell
2015) Available at httpswwwwaterstonescomLaw-of-guaranteesrichard-
millettgeraldine-mary-an
Goode R Consumer Credit Law and practice (Levis Nexis UK 2008) Available at
httpsstorelexisnexiscoukproductsgoode-consumer-credit- law-and-practicedetail
Goode R and R Jones (ed) Consumer Credit LegislationhellipEnsyclopaedia of Social Smices Law
and Practice (4th edn Butter worth 2008)
Grace Patrick and Tumwine-Mukubwa Essays in African Banking Law and Practice (2nd edn
Makerere University Printery Kampala Uganda 2009)
Halsburyrsquos Laws of England (4th Edition) Para 103
KI Laibuta Principles of Commercial Law (Law Africa Publishing (K) Ltd Nairobi Kenya
2006)
Larry A Dimatteo EQ Contract theory Evaluation of Contractual intent (1998)
Pagets Law of banking (11th edn by Megrah Butterworths 1966)
The Australian Consumer Law (ACL)
Tom Clark Leasing Finance (2nd edn London1990)
Weerasooria W S Law relating to Banking and Inter-Related Services (Colombo 1997)
103
Wilson L Trade Practices- Unconscionable Conduct Property Council of Australia (Shopping
Centre Conference Sydney18 May 1998)
Reports and articles
Assoc Prof Cameron Stewart lsquoUnconscionable Transactions Undue Influence and Constructive
Trusts Presentation transcriptrsquo published by Cameron Jacobs [1983]
Bhala R lsquoThe Inverted Pyramid of Wire Transfer Law Cross Boarder Electronic Banking
Challenges and Opportunitiesrsquo [1995] ch7 J Norton C Reed amp 1 Walden (eds) (1st edn)
LLP
Cardozo lsquoShaping Law and Legal Values The Nature of Judicial Processrsquo [1921] Newhaven
Yale University Press
Chamila S and Talagala lsquoThe Law Relating to the Bank-Customer Relationship Some Salient
Duties of Banksrsquo [2012]-Ebook Ellingerrsquos Modern Banking Law
Dr Paul Vout lsquoUncoscionability and Good faith in business transactions National Commercial
Law Seminar Seriesrsquo (21 October 2013)
Dr Robert N Moles lsquoRecent Developments in Unscionability in the US and Australiarsquo [2004]
(2004) 16 (2) Bond Law Review 96
Dr S C Bihari lsquoBank-Customer Relationshiprsquo available at
wwwacademiaedu40878038- bank-customer-relationship
104
Ernst and Youngrsquos lsquoWorld Islamic Banking Competitiveness Report according to the Report
Bahrain Kuwait United Arab Emirates Malaysia Saudi Arabia Pakistan Turkey
Quatar and Indonesia are the Countries holding the bulk of the assets for Islamic
Bankingrsquo [2014-15]
Glover John lsquoBanks and Fiducially relationshipsrsquo [1995] Bond Law Review P 105
Glover John lsquoBanks and Fiduciary Relationshipsrsquo [1995] Bond Law Review Available at
httpepublicationsbondeduaublrvol7iss15 Accessed on 28th October 2015
Goldring J and Maher L lsquoWhat is Uncoscionabilityrsquo [1990] p 56-8
John Gloverrsquos lsquoArticle on Banks and Fiduciary relationshipsrsquo [1995] Bond Law Review p 143
John Keoch lsquoThe Case Against Unconscionable Conduct International Real Estate Society
Conferencersquo [1999]
Karl Marx lsquoThe Process of Capitalist Production as a wholersquo (1959) Capital Vol iii Institute of
Maxism-Leninism USSR International Publishers NY [nd]
Karl Marx lsquoThe Process of Capitalist Production as a wholersquo [1959]
Larry A Dimatteo amp Bruce L Rich A consent Theory of Unconscionability An Empirical study
of Law in action (33 Fla St Ul Rev 2006) 1067
Melvin Eisenberg The Bargain Principle and Itrsquos Limits (Hary L Rev1995) 741
Nicholas Kihangire lsquoBanker Customer Relationshiprsquo (Posted 7th June 2012) (Accessed on 31st
October 2015)
Nishrsquos law school Guide lsquoGuide on the Law of Banking and Negotiable Instrumentsrsquo Posted 7th
June (2012) by Kihangire Nicholas (Accessed on 31st October 2015)
105
Nishrsquos law Guide lsquoNotes on the Law of Banking in Ugandarsquo Posted 7th June 2012 by Kihangire
Nicholas (Accessed on 31st October 2015)
Plato-Shinar R lsquoThe Bankrsquos Fiduciary Dutyrsquo (2006) 22 Banking amp Finance Law Review 1
Randy E Bernett lsquoConsent Theory of Contractrsquo (86 Colum L REV 1986) 269
Stephen D Simpson CFA The Banking System Non-Bank Financial Institutions Available at
wwwworldbankorggtgtGlobal Financial Development ReportgtBackground Also at
wwwinvestopediacomuniversitybanking-systembanking-system11asp Accessed on
31st October 2015
Simone Wong lsquoRevisiting Barclays Bank v OrsquoBrien and Independent Legal Advice for
Vulnerable Suretiesrsquo Available at
httpsdialnetuniriojaesseruletarticulocodigo=2539177 Accessed on 31st October
2015
The Internet Website
wwwimforgexternalrpfadtransindexhtm Accessed on 18th September 2015 at 743 pm
Read The Banking System Non-Bank Financial InstitutionsInvestopedia
httpwwwInvestopediacomuniversitybanking-systemIIaspizz3tfd2ZP2U
wwwinvestopediacomtermsffinancialinstitutionasp FI (FI) DefinitionInvestopedia accesed
on 1st December 2015
httpwwwbusinessdictionarycomdefinitionfinancial- institutionhtmlixzz3t6jOhoHt
Accessed on 1st December 2015 at 0107 pm see also The Financial Institutions Act
2004 Section 3
106
Article available httpswwwgovaubusinessanti-competive-behaviourunconscionable-
conductpenalties-and-remedies (Accessed on 28th October 2015)
Available at httpepublicationsbondeduaublrvol7iss15
httpwwwlawteachernetfree- law-essayscontract- lawcommercial-bank-of-australia-v-amadio-
contract-law-essayphpixzz3pooiGJP (Accessed on 29th September 2015)
httpwwwMonitorcougbusinesshowamended-financial- law-could-revolutionise-
banking688322-3027954-item-01-iqtq6fzindexhtml (accessed on Wednesday
December 2015)
httpwwwMonitorcougbusinessproposedgroundbreaking-when-the-mobile-phone-became-a-
bank688616-3345460-9t8no5zindexhtml (accessed on Wednesday December 2015)
httpwwwkenyalawresourcecenterorg201107duty-of-customer-owed-to-bank-
inhtmlsthashffM6BBw8dpuf
httpwwwmonitordirectorycoug
httpwwwlawteachernetfree- law-essayscommercial- lawgeneral- legal-relationship-between-
bank-and-customer-commercial- law-essayphpixzz3np1FiFeN
httplawschoolguideblogspotcom201206banker-customer-relationship-by-nishhtml