Contract 11 - Undue influence Flashcards
What is undue influence?
consent not expression of their free will
π§ββοΈ
What are the 2 types of undue influence?
- Overt Acts of Improper Pressure or Coercion π€Ήπ
OR
- Relationship where 1 has influence over the other which was taken advantage of π¨βπ©βπ§
What is required for acts of improper Pressure or Coercion π€Ήπ?
- where behaviour is deceitful/fraudulent, only a factor in inducing C
ππ€ - if not deceitful, but for test applies
ππ
When will the court infer Undue Influence (albeit it can still be rebutted)?
- Relationship of trust and confidence (if not irrebuttable presumed) π«
AND
- Transaction is out of the ordinary requiring explanation π€―
Burden π¨ββοΈ then shifts to D to show no UI
For the second test, there needs to be a relationship of influence (ascendency) where 1 takes advantage of the other. What relationships is there an irrebuttable presumption of influence?
- Parent and child π¨βπ©βπ§
- Guardian and wardπ¨βπ©βπ§
- Trustee and beneficiaryπ»π²
- Solicitor and client π¨βπΌπ©βπ³
- Doctor and patientπ¨ββοΈπ€
For the second test, there needs to be a relationship of influence (ascendency) where 1 takes advantage of the other. What relationships are there where there is no presumption of influence?
- Parent and adult child π΄π¨βπ¦²
- Husband and wifeπ€΅π°
Influence will need to be positively shown
If there is a relationship of influence AND a transaction that requires explanation, what is the outcome?
Undue Influence is assumed so it is now for the D to show that there was no UI
What is required for the matrimonial home?
- wife must see solls
- bank provide solls with info
- if aware the wife has been misled, must tell solls
- solls meet with wife
- explain risk of losing home
- the seriousness of that risk
- the fact the wife has a choice
If fails, wife has recourse to solls not lender.
What is the remedy for undue influence?
Rescission π (but can be lost if contract affirmed, and equitable principles apply)
ππ€
When do you not need to give notice of hearsay?
- witness statement served on other party by a witness that will appear at court
- witness statement served on other party by a witness that will NOT appear at court as long as told W wonβt be appearing in court and the reasons why not