19. Undue Influence

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Third Party ◽  
Undue Influence ◽  
The Law

This chapter discusses cases of alleged undue influence. Such cases have caused considerable difficulties for the courts in recent years, not in relation to the existence of the doctrine, but to its scope and its relationship with other doctrines, particularly duress, and other cases in which courts have intervened to protect the vulnerable or those who have been exploited. Recent judicial exposition of undue influence has tended to take place in the context of three-party cases rather than two-party cases, that is to say cases in which a wrong has been committed by a third party and not the defendant. Two leading cases of undue influence are analysed: Allcard v. Skinner (1887) 36 Ch D 145 and Royal Bank of Scotland plc v. Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 and they are used to illustrate the limits of the modern doctrine of undue influence and in particular the role of presumptions in this area of the law.

15. Undue Influence, Unconscionability, and Equality of Bargaining Power

2021 ◽  
pp. 500-533
Author(s):  
André Naidoo
Keyword(s):  
Consumer Protection ◽  
Bargaining Power ◽  
Case Law ◽  
Third Party ◽  
Undue Influence ◽  
The Third ◽  
The Law

This chapter examines undue influence, which is largely about pressure and influence arising from a relationship. It begins with the basic role of the law on undue influence before moving to the substantive case law. The case law is divided into three categories, which are based on the different ways of proving undue influence. The first relates to what is known as ‘actual undue influence’, which is where a complainant proves undue influence. The second is where undue influence between two parties can be presumed from the circumstances. The third category has been a major problem in modern cases and it involves undue influence coming from a third party. The chapter then turns to the wider issues that complete the ‘bigger picture’. The first of these is the area often referred to as ‘unconscionability’, which is about the exploitation of weakness. The second is the attempt to create a wider ‘inequality of bargaining power’ principle. Finally, the chapter looks at the Consumer Protection from Unfair Trading Practices Regulations 2008, which can cover conduct otherwise classed as duress, undue influence, and harassment.

19. Undue Influence

Contract Law ◽  
2020 ◽  
pp. 635-661
Author(s):  
Ewan McKendrick
Keyword(s):  
Third Party ◽  
Undue Influence ◽  
The Law

This chapter discusses cases of alleged undue influence. Such cases have caused considerable difficulties for the courts in recent years, not in relation to the existence of the doctrine, but to its scope and its relationship with other doctrines, particularly duress, and other cases in which courts have intervened to protect the vulnerable or those who have been exploited. Recent judicial exposition of undue influence has tended to take place in the context of three-party cases rather than two-party cases, that is to say cases in which a wrong has been committed by a third party and not the defendant. Two leading cases of undue influence are analysed: Allcard v. Skinner (1887) 36 Ch D 145 and Royal Bank of Scotland plc v. Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 and they are used to illustrate the limits of the modern doctrine of undue influence and in particular the role of presumptions in this area of the law.

Some Varieties of Consent in Equity

2020 ◽  
pp. 313-332
Author(s):  
Simone Degeling
Keyword(s):  
Decision Making ◽  
Relevant Information ◽  
Third Party ◽  
Great Care ◽  
Undue Influence ◽  
Autonomous Decision ◽  
Fiduciary Relationships

This chapter studies the role of equity in preserving the autonomy of vulnerable members of the community. It focuses on the equitable domains of trusts, fiduciary relationships, undue influence, and unconscionability, where an imbalance of power exists in which one party has only limited or bounded ability to make decisions. Equity takes great care to protect the independence aspect of autonomous decision, but is less concerned about the availability of choice between meaningful options. A party will be deemed by equity as consenting if their agreement is anchored in freedom and information. Thus, great care is taken by the Courts of Chancery to ensure that no impediment to the exercise of the claimant's will was present in the circumstance. In addition, relevant information must be provided, and at times nothing less than independent advice from a third party would satisfy this requirement. Equity thus conscripts its particularistic nature to offer strong protection for two elements that are crucial for autonomous decision-making: freedom from coercion and information.

On the State of War and of Peace

2019 ◽  
pp. 142-192
Author(s):  
Jean Allain
Keyword(s):  
Dispute Settlement ◽  
The State ◽  
Third Party ◽  
War And Peace ◽  
Law Of Nations ◽  
The Law ◽  
The Right ◽  
Peace Treaties

Book Three has Rayneval taking the reader through the Law of Nations as it relates to war and peace. A focus is placed on the origins, causes, effects, and conduct of war both on land and at sea. The right of conquest in considered, including prisoners, hostages, as well as civilians in conquered territory. This Book also examines the various principles governing alliances and the role of Neutral Powers in times of war. Where the seas are concerned, Rayneval considers the role of Neutrals Powers, of the right to visit in times of war, of Letters of Marque, and the taking of Prizes. Where peace is concerned, Rayneval speaks of the nature and obligations flowing from peace treaties and invokes mediation as the sole basis of third-party dispute settlement.

Doctrine and fairness in the law of contract

Legal Studies ◽  
2009 ◽  
Vol 29 (4) ◽  
pp. 534-575
Author(s):  
Andrew Phang
Keyword(s):  
Tipping Point ◽  
Central Theme ◽  
Undue Influence ◽  
Common Mistake ◽  
Rules And Principles ◽  
The Law

This paper explores, through illustrations from the law of contract, the important central theme to the effect that the rules and principles, which constitute the doctrine of the law, are not ends in themselves but are, rather, the means through which the courts arrive at substantively fair outcomes in the cases before them. The paper focuses on the concept of ‘radicalism’, which relates to the point at which the courts decide that it is legally permissible to hold that a contract should come to an end because a radical or fundamental ‘legal tipping point’ has not only been arrived at but has, in fact, been crossed. It explores the role of this concept as embodied in the doctrines of frustration, common mistake, discharge by breach, as well as fundamental breach in the context of exception clauses – in particular, how ‘radicalism’ with regard to these doctrines can be viewed from the (integrated) perspectives of structure, linkage and fairness. The paper also touches briefly on linkages amongst the doctrines of economic duress, undue influence and unconscionability, as well as the ultimate aim these doctrines share of achieving fair outcomes in the cases concerned.

Poole's Textbook on Contract Law

2021 ◽  
Author(s):  
Robert Merkin QC ◽  
Séverine Saintier
Keyword(s):  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Detailed Treatment ◽  
The Law ◽  
Contractual Obligations ◽  
Unfair Terms

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This book has been guiding students through contract law for many years. It places the law of contract clearly within its wider context, including the growing distinction between commercial and consumer contracting, before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Part 1 considers formation, looking in detail at agreement, certainty and agreement mistakes, the enforceability of promises and the intention to be legally bound. Part 2 looks at content, interpretation, exemption clauses and unfair terms, performance, and breach. Part 3 considers the enforcement of contractual obligations including remedies, detailed treatment of damages for breach of contract, privity and third party rights, and discharge by frustration. Part 4 looks at methods of policing the making of a contract, such as non-agreement mistakes which render the contract void, misrepresentation, duress, undue influence, unconscionable bargains, and illegality. The book also includes references to relevant EU consumer legislation and introduces students to the various attempts (international and European) to produce a harmonized set of contract principles.

Poole's Textbook on Contract Law

2019 ◽  
Author(s):  
Robert Merkin QC ◽  
Séverine Saintier
Keyword(s):  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Detailed Treatment ◽  
The Law ◽  
Contractual Obligations ◽  
Unfair Terms

Course-focused and comprehensive, the series provides an accessible overview of the key areas on the law curriculum. This book has been guiding students through contract law for many years. It places the law of contract clearly within its wider context, including the growing distinction between commercial and consumer contracting, before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Part 1 considers formation, looking in detail at agreement, certainty and agreement mistakes, the enforceability of promises and the intention to be legally bound. Part 2 looks at content, interpretation, exemption clauses and unfair terms, performance, and breach. Part 3 considers the enforcement of contractual obligations including remedies, detailed treatment of damages for breach of contract, privity and third party rights, and discharge by frustration. Part 4 looks at methods of policing the making of a contract, such as non-agreement mistakes which render the contract void, misrepresentation, duress, undue influence, unconscionable bargains, and illegality. The book also includes references to relevant EU consumer legislation and introduces students to the various attempts (international and European) to produce a harmonized set of contract principles.

Pengatuan Hukum Terhadap Narkotika Jenis-Jenis Baru yang Belum Terdaftar

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Rizky Maulana Hakim
Keyword(s):  
Hazardous Materials ◽  
Legal Certainty ◽  
Next Generation ◽  
The Law

We realize that in the community, it is still close to the night world which can plunge the nation's next generation, through drinking, gambling, and especially Narcotics. There are many rules related to this problem, it is still possible that the minimum knowledge of the community is what causes users to become victims of the rigors of using drugs.In discussing this paper, we will take and discuss the theme of "Legal Certainty and Role of Laws on Narcotics (Narcotics and Drugs / Hazardous Materials) by Users and Distributors." The purpose of accepting this paper is, first, to be agreed by the reader which can be understood about the dangers that need to be discussed regarding the subjectivity of the drug itself; secondly, asking the reader to get a clue about actually addressing the urgency about the distribution of drugs; round, which is about knowing what the rules of the law and also the awareness in the surrounding community.Keywords: Narcotics, Role of Laws, Problem, Minimum Knowledge, awareness

The Role of Women in Pursuing Scottish Criminal Actions, 1580–1650

2020 ◽  
Vol 24 (2) ◽  
pp. 232-250
Author(s):  
Stephanie Dropuljic
Keyword(s):  
Early Modern ◽  
Legal History ◽  
Criminal Court ◽  
Current Understanding ◽  
The Law ◽  
Role Of Women

This article examines the role of women in raising criminal actions of homicide before the central criminal court, in early modern Scotland. In doing so, it highlights the two main forms of standing women held; pursing an action for homicide alone and as part of a wider group of kin and family. The evidence presented therein challenges our current understanding of the role of women in the pursuit of crime and contributes to an under-researched area of Scots criminal legal history, gender and the law.

Neoliberalism, Law and its Discontents: Three Recent Interventions

2020 ◽  
Vol 23 (2) ◽  
Author(s):  
Ravi Malhotra
Keyword(s):  
New York ◽  
Princeton University ◽  
The Law

Honor Brabazon, ed. Neoliberal Legality: Understanding the Role of law in the neoliberal project (New York: Routledge, 2017). 214pp. Paperback.$49.95 Katharina Pistor. The Code of Capital: How the Law Creates Wealth and Inequality (Princeton: Princeton University Press, 2019). 297 pp. Hardcover.$29.95 Astra Taylor. Democracy May Not Exist, but We'll Miss It When It's Gone (New York: Metropolitan Books--Macmillan, 2019). Hardcover$27.00

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