Essay Notes Undue Influence

Topics: Common law, Conclusive presumption, Members of the Privy Council of the United Kingdom Pages: 19 (7557 words) Published: November 30, 2012
Since the doctrine of undue influence is under the court of equity , it derives from different other doctrines that gives it's classification a wide variation from case to case. Thus , it shouldn't be limited a scope of criteria. The criteria shown is only to describe the possibilities of the decisions and distinguishing the doctrine from others , but shouldn't be a consistent set of rules that defines what it exactly it should be in every case and how it should be applied in every case. operates to release parties from contracts that they have entered into as a result of being 'influenced' by the other party. - 754 - Lord Nicholls of Birkenhead : ' If the intention was produced by an unacceptable means , the law will permit the transaction to stand. The means used is regarded as exercise of improper or 'undue' influence, and hence unacceptable whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another , and the manner in which influence may be exercised , vary too widely to permit of any more specific criterion' - 770 ' Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavor to encapsulate the essence: trust and confidence , reliance , dependence or vulnerability on the one hand and a ascendancy domination or control on the other. None of these descriptions is perfect . None is all embracing . Each has it's proper place.” - 771 main book white * Although undue influence is a well-worn phrase , it's precise meaning is unclear. - 363 green handwriting * focus of Etridge maybe be to reduce the practical significance of the presumption of undue influence and to focus the attention of lawyers on the need for the claimant to prove his case. - green handwriting 368 * The courts have generally been reluctant to attempt a comprehensive definition of undue influence. They tend to emphasize the facts and circumstances of the individual case. Thus relationships are ' infinitely various' and no description of the relevant factors is 'perfect' or all embracing'. The emphasis is not only on 'influence but on the 'abuse' or the 'misuse of that influence. In this sense undue influence has been said to have a connotation of impropriety. But it may be improperly in an attempted form , in that it can apparently take reform of failing to provide a claimant with access to independent advice . ' - 753 Contract Law – Text , Cases , and Materials 2nd Edition – Ewan Mckendrick – Oxford University Press – 2005 * Moreover it is possible to identify at a very general level , different factual situation where undue influence might be found. - Unconscionability and the taxonomy of undue influence * The ability to influence another is not, per se, objectionable.194 One of the key requirements of the doctrine of undue influence is that the influence must have been, to adopt the terminology of Birks and Chin, “excessive”. This begs the difficult question: at what point does influence become “excessive” or “undue” (in the sense of too much). In many cases it is clear that there need not be loss of autonomy,195 but beyond this the issue remains hazy. As James Munby Q.C., sitting as a deputy judge of the High Court, said in Bank of Scotland v Bennett 196 : * “It is impossible to define, and difficult even to describe, at what point influence becomes, in the eye of the law, undue.”197 - Unconscionability and the taxonomy of undue influence * In Morgan , Lord Scarman stated that, pursuant to Allcard , in cases of presumed undue influence the courts would require evidence that...
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