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Lord Browne-Wilkinson used this phrase twice in Barclays Bank plc v O’Brien [1993] UKHL 6 (21 October 1993). 1.

If the creditor bank has notice, actual or constructive, of the undue influence exercised by the husband (and consequentially of the wife's equity to set aside the transaction) the creditor will take subject to that equity and the wife can set aside the transaction against the creditor (albeit a purchaser for value) as well as against the husband.

2.

Where a wife has agreed to stand surety for her husband's debts as a result of undue influence or misrepresentation, the creditor will take subject to the wife's equity to set aside the transaction if the circumstances are such as to put the creditor on inquiry as to the circumstances in which she agreed to stand surety.

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    The phrase isn't take subject to, it's will take followed by subject to that equity
    – Jim
    Dec 14, 2012 at 20:38
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    put a comma after the word take and it will be a little more understandable.
    – SeanC
    Dec 14, 2012 at 20:40
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    Take subject to is not a constituent; it's the last word of one constituent (take), followed by the first two words of the next constituent (subject to). Strings are not part of language; grammar is not a BBoW Dec 14, 2012 at 20:56
  • Also note that this is legalese. It's not meant to be easily understood, but it is meant to be specific and precise as to how it will be parsed by courts of law. There are many, many sets of legal phrases and sentences that are used precisely because their meaning has already been argued and decided in court.
    – Robusto
    Dec 14, 2012 at 22:33

1 Answer 1

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The phrase take subject to (something) means take possession of, in this case, a wife's equity that is standing surety against her husband's debt. If the bank takes subject to the equity, they purchase it from the wife subject to any conditions previously put upon it – interest owed, mortgage payment, etc. However, the bank is not required to pay them; the wife is. If the bank doesn't pay them and the wife can't, the wife may foreclose or claim bankruptcy and the bank would lose the equity value.

Another option would be for the bank to assume the wife's equity. In this case, the bank would not just buy the equity, they would also assume all appertaining responsibilities.

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  • '[T]ake subject to' here isn't, as JL says above, a constituent and shouldn't be analysed as a whole just because OP bolds the three-word string. It's rather like analysing take up in 'I will take up' when the sentence reads '... the train I will take up to London'. A comma between take and subject to is quite reasonable. Jun 8, 2019 at 13:08

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