Duress & undue influence Flashcards
What amounts to economic duress?
An improper or illegitimate threat, e.g. to breach a contract or commit a tort
When would a company not be able to rely on duress, even if it was used?
If they contract was affirmed - i.e. paid the extra AFTER deliver of goods
Under Carillion Construction v Felix, what must pressure amount to in order to constitute duress?
Practical effect must be there is a compulsion on / lack of practical choice for the victim
Which is illegitimate, and
Which is a significant cause inducing claimant to enter into the contract
Which party is the onus of proof on regarding duress?
The innocent party
What remedy is available for duress?
Recission only
What remedy is available for undue influence?
Recission only
When is there a presumption of undue influence?
Where there is a fiduciary relationship, an the transaction calls for an explanation (i.e. party enter into a contract that is not for their benefit or exposes them to risk)
Regarding a fiduciary relationship for presumed undue influence, how is this applicable for husband / wife?
It is not always presumed
What responsibility do third parties (typically commercial lenders) have in relation to undue influence?
They will be deemed to have constructive notice of undue influence if:
They ought to have been “put on inquiry”, and did not take reasonable steps to ensure innocent party was aware of implications of what they were signing
What is the practical impact of undue influence, e.g. if there was a mortgage?
Mortgage will be set aside and the mortgagor would be left with debt action against person who applied undue influence
