Part IV Vitiation, 14 Undue Influence

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Informed Consent ◽  
Marital Relationships ◽  
The Other ◽  
Undue Influence ◽  
Business Loan ◽  
The Gift ◽  
The Law

The equitable doctrine of undue influence operates to protect weaker parties from the abuse of their relationships by stronger parties. The five main topics within this chapter are: (i) undue influence can be (a) proved, and is then called ‘actual undue influence’, or (b) it can be inferred to have arisen, and it is then called ‘presumed undue influence’; (ii) for the purpose of presumed undue influence, the law recognizes certain standard relationships of trust and confidence (solicitor and client, guardian and ward, etc); non-standard relationships might be shown, on the facts of the case, to involve such a relationship; for example, this is necessary with respect to marital relationships and relations between banker and customer; (iii) the presumption that there has in fact been an abuse of a relationship is activated within the presumed category if the relevant transaction or gift ‘calls for explanation’; (iv) if actual undue influence, or the presumed form, is shown, it is incumbent on the stronger party to satisfy the court that, nevertheless, the weaker party entered the transaction, or made the gift, with free and informed consent; (v) one important context is the giving of guarantees by spouses or partners to support the receipt by the other spouse of partner of a business loan.

10. Duress, undue influence, and unconscionable bargains

2021 ◽  
pp. 411-445
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
The Other ◽  
Undue Influence ◽  
Financial Interests ◽  
The Law

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter examines the doctrines of duress and undue influence, both of which provide a means for a person to avoid a concluded contract into which he entered due to threats or unfair pressures or influence exerted on him. It also looks at the circumstances in which the courts or Parliament have intervened to prevent one party from taking advantage of another. Duress refers to some form of coercion or threat to the person, property, or to a person’s financial interests (economic duress). Undue influence can arise if there is illegitimate pressure and abuse exerted by one party over the other (actual undue influence) or if something in the transaction is suspicious or calls for an explanation (evidential undue influence). The chapter also considers unconscionable bargaining, procedural and substantive unfairness, consumer legislation, and the link between unconscionability and undue influence.

Truce on the Battlefield: A Proposal for a Different Approach to Medical Informed Consent

1994 ◽  
Vol 22 (4) ◽  
pp. 301-313 ◽  
Author(s):  
August Piper
Keyword(s):  
Informed Consent ◽  
Adverse Outcome ◽  
The Other ◽  
Sufficient Knowledge ◽  
Simple Question ◽  
The Law

What is informed consent in medicine? For more than a generation, this deceptively simple question has vexed the law, discomfited medicine, and generated much inspired, provocative, and even contentious commentary.The question has also spawned several lawsuits. On one side stand patients who claim that, at the time of consent, they were ignorant of a particular risk; who state that, with more or different information, they would have chosen a different treatment; and who argue that, because of an adverse outcome, they now deserve remuneration. On the other side, doctors uneasily watch the lengthening list of suits. Some, troubled by the law's expectations, have reacted by variously describing informed consent as a myth, a fiction, an unattainable goal, or a snare to entrap physicians. They point to the legal commentary condemning informed consent law as ill-defined, diffuse, and fraught with inconsistency, hazy at its best and virtually indecipherable to physicians at its worst: and lacking a fair standard to determine when a patient has sufficient knowledge to give effective consent.

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

15. Duress, undue influence, and unconscionable bargains

2019 ◽  
pp. 587-621
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
The Other ◽  
Undue Influence ◽  
Financial Interests ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines the doctrines of duress and undue influence, both of which provide a means for a person to avoid a concluded contract into which he entered due to threats or unfair pressures or influence exerted on him. It also looks at the circumstances in which the courts or Parliament have intervened to prevent one party from taking advantage of another. Duress refers to some form of coercion or threat to the person, property, or to a person’s financial interests (economic duress). Undue influence can arise if there is illegitimate pressure and abuse exerted by one party over the other (actual undue influence) or if something in the transaction is suspicious or calls for an explanation (evidential undue influence). The chapter also considers unconscionable bargaining, procedural and substantive unfairness, consumer legislation, and the link between unconscionability and undue influence.

scholarly journals The Legal Consequences of Informed Consent for Doctors and Patients in Theurapeutic Agreements

2020 ◽  
Vol 3 (6) ◽  
Author(s):  
Iip Verra Selvia ◽  
Arief Suryono ◽  
Sapto Hermawan
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Professional Association ◽  
Professional Standards ◽  
The Other ◽  
Medical Procedures ◽  
Object A ◽  
Other Hand ◽  
The Law ◽  
Legal Consequences

Informed consent is a requirement for the occurrence of therapeutic agreements between doctors and patients. Therapeutic agreements are agreements where healing effort (inspanningverbittenes) is constituted as legal object. A patient who has given a consent is considered to understand the benefits and risks of medical treatment he would receive. However, the existence of informed consent does not make any doctor immune to the law. If a doctor works outside the professional standards and operational standards that apply and is proven by the professional association, then a doctor could be sanctioned according to applicable regulations. On the other hand, the patient is required to be cooperative in providing information and complying with the medical procedures. The existence of a therapeutic agreement results in both doctor and patient being bound to each other's rights and obligations. Keywords: informed consent; therapeutic agreement; doctor; patient

Undue Influence, Misrepresentation And The Doctrine Of Notice

1995 ◽  
Vol 54 (3) ◽  
pp. 536-544 ◽  
Author(s):  
John Mee
Keyword(s):  
Financial Institutions ◽  
Sexual Partners ◽  
Third Parties ◽  
The Other ◽  
Recent Case ◽  
Undue Influence ◽  
House Of Lords ◽  
The Law ◽  
Difficult Issue

In a series of modern cases, the English Courts have struggled with the problem of the undue influence or misrepresentation of third parties. Most of the cases have concerned women who have been persuaded or deceived into giving guarantees to financial institutions for the business debts of their sexual partners. In the recent case of Barclays Bank p.I.e. v. O'Brien, * the House of Lords made a fresh effort to tackle this difficult issue. Lord Browne-Wilkinson, with whom the other Lords agreed, attempted “to restate the law in a form which is principled, reflects the current requirements of society and provides as much certainty as possible.”1

TINJAUAN HUKUM FIKIH TERHADAP HADIAH TABUNGAN DAN GIRO DARI BANK SYARI'AH

ALQALAM ◽  
2013 ◽  
Vol 30 (1) ◽  
pp. 1
Author(s):  
Muhammad Nadratuzzaman Hosen ◽  
Deden Misbahudin Muayyad
Keyword(s):  
Islamic Law ◽  
Islamic Banks ◽  
Islamic Bank ◽  
Literature Reviews ◽  
The Gift ◽  
The Status ◽  
The Law

This article explains about the Islamic law of gift from Bank to customers related to saving and gyro accounts of Islamic Bank. The Islamic Banks give gift directly  and  indirectly  to  new  ettstomers  and  old  customers  through drawing  (qur'ah) or lottery and non-drawing. There are disputes (ikhtilaf) among Islamic Law  Experts (Fuqaha’) about the status of law when Islamic Banks give the gift. Hanafi and  Syafi'i  Schools  of thought  opined  that  the gift  can  be given  to  the customers as long as there is no agreement between bank and costomers meanwhile the banks still have a debt to consumers, this is permissible. Maliki and Hanbali schools opined that the gift is not permissible during the time of borrowing and lending. Majority Islamic Exsperts allow to give gift after banks have already paid­ back the debt to consumers as long as there is no agreement between bank and cusiomers, but Maliki School do not allow lo give gift at that condition. Also, for giving gift should free from gambling or elements of gambling (muqamarah).  The method of this article is using literature reviews from classical Islamic Law's books and contemporary Islamic law's books related to drawing or lottery and gambling, meanwhile the aims if this mticle are to investigate the law status if gift from bank to new customers and old customers with direct and indirect ways.   Keywords : gift, saving and gyro accounts, disputes, drawing and elements of gambling

Dukungan Legislatif Dalam RUU KUHP Untuk Pemberantasan Korupsi: Pro dan Kontra Tindak Pidana Korupsi dalam RUU KUHPDukungan Legislatif Dalam RUU KUHP Untuk Pemberantasan Korupsi: Pro dan Kontra Tindak Pidana Korupsi dalam RUU KUHP

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1721
Author(s):  
Muhammad Aziz Syamsuddin
Keyword(s):  
United Nations ◽  
Criminal Code ◽  
The Other ◽  
Deterrent Effect ◽  
United Nations Convention ◽  
Legislative Support ◽  
The Law ◽  
Shared Commitment ◽  
Crime Of Corruption

AbstractThe spirit of the eradication of corruption is running continually. Various efforts or strategies were arranged to sharpen the power of corruptions’ eradication. One of the strategies is legislation support or comprehend and effective legislation. It was proved by the enactment of Law No. 28 of 1999 on State Implementation of Clean and Free from Corruption, Collusion and Nepotism and also Law No. 31 of 1999 as amended by Law No. 20 of 2001 on Corruption Eradication. The other related legislation such as Law No. 30 of 2002 on Corruption Eradication Commission and the Law 8 of 2010 on the Prevention and Eradication of Money Laundering.  Those Supporting legislations show that there is a shared commitment to eradicate corruption. Indonesia has also ratified the UNCAC (United Nations Convention against Corruption) by Law No. 7 of 2006 on the UN Convention (United Nations) Anti-Corruption. Support legislation is expected to provide a deterrent effect for offenders and protecting the rights of citizens has a whole. Keywords: Legislative Support, Criminal Code Draft, Eradication, Crime of Corruption, Pros and Cons    AbstrakSemangat pemberantasan tindak pidana korupsi terus bergulir. Berbagai upaya atau strategi dibangun untuk mempertajam kekuatan pemberantasan korupsi. Salah satunya adalah dengan dukungan legislasi atau peraturan perundang-undangan yang komprehensif dan efektif. Dibuktikan dengan lahirnya Undang-Undang No. 28 Tahun 1999 tentang Penyelenggaraan Negara yang Bersih dan Bebas dari Korupsi, Kolusi, dan Nepotisme dan Undang-Undang No. 31 Tahun 1999 sebagaimana diubah dengan Undang-Undang No. 20 Tahun 2001 tentang Pemberantasan Tindak Pidana Korupsi. Adapun undang-undang terkait lainnya seperti UU No. 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi dan UU No. 8 Tahun 2010 tentang Pencegahan dan Pemberantasan Tindak Pidana Pencucian Uang. Dukungan legislasi tersebut menunjukkan adanya komitmen bersama untuk memberantas tindak pidana korupsi. Indonesia juga  telah meratifikasi UNCAC (United Nations Convention Against Corruption) dengan UU No. 7 Tahun 2006 tentang Konvensi PBB (Perserikatan Bangsa-Bangsa) Anti Korupsi. Dukungan legislasi ini diharapkan memberikan efek jera bagi pelaku sekaligus melindungi hak-hak warga negara secara keseluruhan. Kata Kunci: Dukungan Legislatif, RUU KUHP, Pemberantasan, Tindak Pidana Korupsi, Pro dan Kontra

The Gift of the Other: Levinas and the Politics of Reproductionby Lisa Guenther

Hypatia ◽  
2008 ◽  
Vol 23 (4) ◽  
pp. 225-228
Author(s):  
Ewa Plonowska Ziarek
Keyword(s):  
The Other ◽  
The Gift

Genital Call and Genitals on Trial: by Giegold & Weiß (nGbK, 2014)

Screen Bodies ◽  
2016 ◽  
Vol 1 (2) ◽  
pp. 87-91
Author(s):  
Karen Fiss
Keyword(s):  
Sexual Assault ◽  
Male Student ◽  
The Other ◽  
Columbia University ◽  
The Law ◽  
Affirmative Consent

In California, where I live, an affirmative consent law was recently passed: often referred to as the “yes means yes” standard for sexual assault, it is now required of all colleges receiving state funds. Supporters of the law argue that campus rapists can no longer be exonerated because their victims did not resist or were incapacitated by fear, shame, or intoxication. On the other side of the country, a student at Columbia University became an icon in this ongoing legal struggle by carrying her mattress around with her everywhere, including to her graduation, as a sign of protest against the university’s refusal to expel the male student who raped her.

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