10. Undue influence

2017 ◽  
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
The Other ◽  
Third Party ◽  
Undue Influence ◽  
Essential Information

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The doctrine of undue influence is an equitable doctrine allowing a contract to be set aside (the remedy of rescission) at the court’s discretion where there has been a wrongful (undue) exercise of influence by one party over the other. This chapter focuses on instances where the agreement cannot stand in light of undue influence, including instances where the undue influence was exercised by a third party and the contracting party had notice of that undue influence.

10. Undue influence

2019 ◽  
pp. 223-232
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
The Other ◽  
Third Party ◽  
Undue Influence ◽  
Essential Information

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The doctrine of undue influence is an equitable doctrine allowing a contract to be set aside (the remedy of rescission) at the court’s discretion where there has been a wrongful (undue) exercise of influence by one party over the other. This chapter focuses on instances where the agreement cannot stand in light of undue influence, including instances where the undue influence was exercised by a third party and the contracting party had notice of that undue influence.

10. Duress and undue influence

2021 ◽  
pp. 214-226
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Third Party ◽  
Undue Influence ◽  
Essential Information ◽  
Contracting Process

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The doctrines of duress and undue influence may result in a contract being set aside (the remedy of rescission) where illegitimate pressure has been used in the contracting process. This chapter focuses on instances where the agreement cannot stand in light of duress or undue influence, including instances where the duress or undue influence was exercised by a third party and the contracting party had notice of that duress or undue influence.

Contract Law Concentrate

2017 ◽  
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Essential Information ◽  
Common Mistake ◽  
Default Rules

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Contract Law Concentrate contains a wealth of information on the field of contract law to aid with revision and understanding the elements of the contract law syllabus. It looks specifically at the components of agreement, enforceability criteria comprising intention to create legal relations, consideration (and its relationship with duress), and the doctrine of promissory estoppel. It also focuses on some problems associated with reaching agreement such as whether the terms are sufficiently certain and mistakes which prevent agreement. The doctrine of privity determines who has the ability to enforce the contract and whether a third party can take the intended benefit of a contract. Contract Law Concentrate focuses on the terms (or promises) of the contract and breach of contract when those promises are broken. It also examines exemption clauses and unfair contract terms. Next it looks at remedies for the breach of contract. It then turns to contractual impossibility and risk where the default rules of common mistake (initial impossibility) and frustration (subsequent impossibility) will determine the parties’ positions in the absence of party allocation. Finally it outlines contractual remedies for actionable misrepresentations and looks briefly at the equitable doctrine of undue influence, types of undue influence, and instances when the contract can be avoided.

Contract Law Concentrate

2019 ◽  
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Essential Information ◽  
Common Mistake ◽  
Default Rules

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Contract Law Concentrate contains a wealth of information on the field of contract law to aid with revision and understanding the elements of the contract law syllabus. It looks specifically at the components of agreement, enforceability criteria comprising intention to create legal relations, consideration (and its relationship with duress), and the doctrine of promissory estoppel. It also focuses on some problems associated with reaching agreement, such as whether the terms are sufficiently certain, and mistakes which prevent agreement. The doctrine of privity determines who has the ability to enforce the contract and whether a third party can take the intended benefit of a contract. Contract Law Concentrate focuses on the terms (or promises) of the contract and breach of contract when those promises are broken. It also examines exemption clauses and unfair contract terms. Next it looks at remedies for the breach of contract. It then turns to contractual impossibility and risk where the default rules of common mistake (initial impossibility) and frustration (subsequent impossibility) will determine the parties’ positions in the absence of party allocation. Finally, it outlines contractual remedies for actionable misrepresentations and looks briefly at the equitable doctrine of undue influence, types of undue influence, and instances when the contract can be avoided.

15. Duress, undue influence, and unconscionable bargains

2019 ◽  
pp. 702-760
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
The Other ◽  
Third Party ◽  
Undue Influence ◽  
Financial Position ◽  
Legal Effect ◽  
The Subject ◽  
The Relationship ◽  
Selection Of ◽  
Made In

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines further vitiating factors which relate to the way in which the contract was entered into and render it voidable. It discusses the doctrines of duress and undue influence and whether contracts are affected by a general doctrine of unconscionability relating to the manner of formation and content relative to the nature and position of the contracting parties. The doctrine of economic duress allows for any contract to be set aside where unlawful threats to financial position were made in order to secure agreement. This doctrine is still evolving but represents a mechanism to prevent the enforceability of promises not freely given. Under the doctrine of undue influence, a contract may be set aside if one party has put unfair and improper pressure on the other in the negotiations leading up to the contract. The courts of equity have developed undue influence as one of the grounds of relief to prevent abuse of the influence of one person over another, particularly where the influence results from the nature of the relationship between the parties. The chapter examines types of undue influence, actual undue influence, presumed (or evidential) undue influence, undue influence exercised by a third party, the legal effect of undue influence, and the relationship between undue influence and unconscionability.

Contract Law Concentrate

2021 ◽  
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Essential Information ◽  
Common Mistake ◽  
The Common ◽  
Default Rules

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Contract Law Concentrate contains a wealth of information on the field of contract law to aid with revision and understanding the elements of the contract law syllabus. It looks specifically at the components of agreement, enforceability criteria comprising intention to create legal relations, consideration, and the doctrine of promissory estoppel. It also focuses on some problems associated with reaching agreement, such as whether the terms are sufficiently certain, and mistakes which prevent agreement. The doctrine of privity determines who has the ability to enforce the contract and whether a third party can take the intended benefit of a contract. Contract Law Concentrate focuses on the terms (or promises) of the contract and breach of contract when those promises are broken. It also examines exemption clauses and unfair contract terms. Next it looks at remedies for the breach of contract. It then turns to contractual impossibility and risk where the default rules of common mistake (initial impossibility) and frustration (subsequent impossibility) will determine the parties’ positions in the absence of party allocation. Finally, it outlines contractual remedies for actionable misrepresentations and looks briefly at the common law doctrine of duress and the equitable doctrine of undue influence.

10. Duress, undue influence, and unconscionable bargains

2021 ◽  
pp. 507-564
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Contract Law ◽  
The Other ◽  
Third Party ◽  
Undue Influence ◽  
Legal Effect ◽  
The Subject ◽  
The Relationship ◽  
Selection Of ◽  
Made In

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines further vitiating factors which relate to the way in which the contract was entered into and render it voidable. It discusses the doctrines of duress and undue influence and whether contracts are affected by a general doctrine of unconscionability relating to the manner of formation and content relative to the nature and position of the contracting parties. The doctrine of economic duress allows for any contract to be set aside where unlawful threats to financial position were made in order to secure agreement. This doctrine is still evolving but represents a mechanism to prevent the enforceability of promises not freely given. Under the doctrine of undue influence, a contract may be set aside if one party has put unfair and improper pressure on the other in the negotiations leading up to the contract. The courts of equity have developed undue influence as one of the grounds of relief to prevent abuse of the influence of one person over another, particularly where the influence results from the nature of the relationship between the parties. The chapter examines types of undue influence, actual undue influence, presumed (or evidential) undue influence, undue influence exercised by a third party, the legal effect of undue influence, and the relationship between undue influence and unconscionability.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

scholarly journals KONTRAKT SPÓŁKI JAKO PODSTAWA ODPOWIEDZIALNOŚCI IN SOLIDUM W PRAWIE RZYMSKIM

2017 ◽  
Vol 3 (1) ◽  
pp. 43
Author(s):  
Zuzanna Służewska
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Third Party ◽  
Roman Law ◽  
Joint And Several Liability ◽  
Internal Relation ◽  
Common Opinion ◽  
Formal Procedure ◽  
The Common

THE CONTRACT OF PARTNERSHIP AS A BASE OF IN SOLIDUM LIABILITY IN ROMAN LAWSummary In the modern civil law joint and several liability of partners in a partnership is a rule rather than an exception. According to the common opinion this concept did not originate in the Roman law but was first invented in the medieval times by glossators and commentators. The Roman partnership created only a private relation between partners (who, due to a conclusion of that contract were reciprocally obliged to act together in accordance with a good faith in order to conduct common business and to divide profits and bear losses in proportion to their respective shares) and its conclusion did not affect their liability against third parties. The partners had no right to bind themselves contractually to any third parties, unless they all acted jointly (in this case, however, their joint representation was derived from their expressed declarations and not the existence of a contract o f partnership). Thus, any commitment made by an individual partner, even if made within the scope of a partnership having obtained other partners’ consent, was treated as a personal debt of this partner and the remaining partners were not liable against his contractor. Then, of course, the partner who made a commitment (acting within the partnership’s business) could claim a part of what he had paid to a third party from other partners in proportion to their respective shares in the common enterprise.Such a solution was necessary because of the purely consensual character o f the Roman partnership and the lack of any formal procedure of its conclusion and dissolution. The existence of that contract could not affect the model of the external liability of partners, because it would be too risky for third parties, which had no possibility to make sure if a contract of partnership between some persons had been actually concluded or not. Thus, the role of a contract of partnership in the Roman law was only limited to determine a mutual liability o f partners, to specify their respective rights and obligations and to define the scope of their liability against other partners.There are only a few written sources concerning so called specific kinds of partnership characterized by untypical joint and several responsibility of partners. Moreover these texts are not very clear and are difficult to interpret, so the issue of specific kinds of a partnership is a matter of doubts among Romanists. Some authors even believe that the specific types of partnership did not exist in the Roman law at all.It should be firstly observed that the texts regarding a contract of partnership itself (the texts included in the title pro socio of Justinian’ Digest) did not raise the question of the external liability of partners because they were devoted to internal settlement o f accounts within sociu Thus, taking into account only these texts one cannot ascertain that a conclusion of a contract of partnership could not affect in any way the model of the partners’ liability against third parties.Secondly, the other texts concerning the regulation of conducting an economic activity in the Roman law (actio institoria, actio exercitoria and actio de peculio) present some regularity in an introduction of joint and several liability of debtors.On the one hand that model of the liability was introduced in situations in which protecting safety of trade required that the creditor be able to claim a whole amount o f the debt from one person only.On the other hand this model of liability could be introduced only in these cases in which some internal relation existed between several debtors. On the grounds of such relations the debtor who satisfied in full the creditor’s claim could sue other debtors in order to recover their respective parts in the debt. In the Roman law that internal relation that guaranteed the possibility of a recourse could be either a joint-ownership or a partnership.Having considered that, one may say that the texts concerning specific kinds o f partnership do not prove existence of any special type of societas. These sources regard only the situations when a joint and several liability between several debtors was introduced because it was justified by the circumstances: that is the necessity to protect the safety of trade on one hand and the existence of the contract of partnership that guaranteed a possibility to realize the recourse, on the other.In conclusion one may say that although a closing of a contract of partnership did not create a joint and several liability of partners, in some cases its existence was decisive for introducing this model of liability since it guaranteed to every party a possibility to act against the others to obtain the recourse. Thus, Roman jurisprudence made an important step towards the future introduction o f joint and several liability of partners as a rule of a civil law.

scholarly journals Public Private Partnerships and the Prospects for Sustainable ICT Projects in the Developing World

2007 ◽  
Vol 2 (3) ◽  
Author(s):  
Elizabeth Fife ◽  
Laura Hosman
Keyword(s):  
Case Studies ◽  
Success Factors ◽  
Public Services ◽  
Developing World ◽  
The Other ◽  
Third Party ◽  
Non Profit ◽  
Current State ◽  
The One

This paper analyses the recent phenomenon of private/public partnerships (PPPs) in the ICT sector of the developing world. The partners may come to these projects with divergent motivations: profit on the one hand and the provision of public services on the other, but at the end of the day, the interests of the partners that are symbiotic can – and indeed should – be aligned to ensure successful long-term projects. To investigate what can be done to promote successful and sustainable PPPs, this paper extends the traditional two-actor analysis to include both a third-party non-profit-oriented facilitating organization and the technology recipients that are the targets of these projects. Following an overview of the current state of PPPs in the developing world, the paper provides two case studies, based in Vietnam, where all four of the above-mentioned stakeholders were involved. The cases reveal important success factors that can be applied to future PPPs in the ICT sector.

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