Common Law Vitiating Factors

Question 1

What are the KEY principles of COMMON LAW Vitiating Factors

Answer 1

Duress
Undue Influence
Unconscionable Dealing

Question 2

What is the REMEDY for Common Law Vitiating Factors

Answer 2

Rescission

Question 3

What are the clues for Vitiating Factor?

Answer 3

• There is an uneven distribution of power

Question 4

If there is duress, what can the victim plea for?

Answer 4

• Rescission of contract

Question 5

What are the 2 elements to duress? (Lord Scamman)

Answer 5

1. Pressure forced someone to enter contract
2. Pressure must be ILLEGITIMATE

Question 6

What 3 things can duress apply to?

Answer 6

1. Duress to person
2. Goods
3. Economic duress

Question 7

What is Undue Influence?

Answer 7

• Party enters into contract under the influence of other party where they had TRUST and RELIANCE on the party

Question 8

How to recognize if something is Duress or Undue Influence?

Answer 8

• Duress = threats, more violent
• Undue influence = more subtle, doing an action which encourages plaintiff to enter into contract

Question 9

How may Undue Influence arise (in 2 ways)

Answer 9

1. Established in fact
2. Arise due to relationship of parties

Question 10

What must be PROVEN for undue influence to be made out?

Answer 10

• Stronger party exercised control and power + weaker party did NOT have bargaining power comparable

Question 11

How can a defendant REBUT Undue Influence?

Answer 11

• Show that plaintiff entered at their will

Question 12

Is a ‘husband and wife,’ ‘child and parent’ deemed as relationship of influence?

Answer 12

• No

Question 13

How can a plaintiff prove Undue Influence if there is NO presumption of influence?

Answer 13

• Must prove that there was a RELATIONSHIP of influence in FACT by showing plaintiff had TRUST and confidence

Question 14

What is Unconscionable Dealing?

Answer 14

• Encouraging weaker party to join contract based on their special disadvantage such as disability

Question 15

What case is binding for Unconscionable Dealing?

Answer 15

Amadio

Question 16

What are the 2 factors/elements which makes out Unconscionable Dealing?

Answer 16

1. Plaintiff’s disadvantage impacts their ability to judge their own interests –> simply an unequal bargaining position does NOT equate to a special disadvantage e.g. Old Age, and poverty does NOT constitute
2. Defendant KNEW and took advantage of difference

Question 17

If both elements of Unconscionable Dealing are made out, who is the onus on?

Answer 17

• Onus is on the DEFENDANT to prove transaction was fair and reasonable