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Investors seeking to enforce a common law duty to advise with care may face considerable difficulties because of contract terms undermining the recognition of such an obligation in tort or contract. The chapter traces the reluctance of courts in numerous common law jurisdictions to recognise advisory obligations, particularly on the part of banks, unless they have been clearly undertaken, and how contract terms have reinforced that approach by disclaiming an advisory role and portraying banks as information providers. Such terms may shield a number of de facto arrangements in which advice was promised or was given, and in which the adviser should arguably be accountable. The chapter argues that courts should presume that a retail customer expects to receive advice when contracting with a financial adviser, and that any contract terms to the contrary should be carefully scrutinized using the measures that promote contractual fairness in the relevant jurisdiction.

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Editor: Sandra Booysen
Monograph Book