Duress, Undue Influence and Unconscionable bargain

Question 1

Duress

Answer 1

allows the court to set aside an agreement where the consent of the complainant has been procured through illegitimate pressure.

Question 2

who invokes duress?

Answer 2

It is invoked by a party who claims that he was forced into entering the
contract or modifying a term in the contract.

Question 3

what does friel comment about duress?

Answer 3

Friel comments that the concept of duress involves “removal of the free will and consent required to make a contract”

Question 4

what are the facts of the case in Barton v. Armstrong

Answer 4

In Barton extreme threats, in the form of threats to kill, were levelled against a businessman and his family.

Question 5

what are the facts of of Blackwood v. Gregg

Answer 5

an elderly man executed a deed benefiting one of a number of relatives who had abducted him. In those circumstances, it was held that his captivity was in itself capable of amounting to coercion which would make the deed unenforceable.

Question 6

what are the facts of griffith v griffith

Answer 6

Man who impregnated a woman and was threatened by her family, to the effect that both he and his father would lose their jobs and that he would be prosecuted and imprisoned, if he did not marry the girl. Faced with these threats, he caved in. He subsequently claimed that his apparent consent to marriage had been obtained by duress.

Question 7

what was significant about the case of Scott v Meritt

Answer 7

This was the case that economic duress was recognised, as opposed to just physical duress. The court saw no difference between physical duress and economic duress

Question 8

What was established in “The Universe Sentinel” as the classic case of duress?

Answer 8

The classic case of duress is.. Not the lack of will to submit to the contract but the victim’s intentional submission arising from the realization that there is no other practical choice open to him

Question 9

what are the relevant considerations when assessing the legitimacy of pressure?

Answer 9

1. did the person protest?
2. was there an alternative course open to him?
3. was he independently advised?
4. after entering the contract, did he take steps to avoid it?

Question 10

how did charleton J describe the issue of duress in ACC bank v Dillion & Ors

Answer 10

consent must have been so wrongfully obtained that it can be properly described as an illegitimate and significant cause of the party ostensibly contracting giving assent.

Question 11

what was undue influence defined as in the case of smith v henline

Answer 11

The court stated that “undue influence… is any improper or wrongful constraint, machination or urgency of persuasion, whereby the will of the person is overpowered, and he is induced to do or forbear enact which he would not do, or would do if left to act freely.

Question 12

What are the 2 categories of Undue influence and which case established this?

Answer 12

Barclays Bank v. O’Brien.
2 categories:
1. Actual Undue influence
2. Presumed Undue Influence

Question 13

what is actual undue influence?

Answer 13

The claimant must prove that undue influence was actually
exercised. This class of undue influence does not depend on any special relationship between the parties. This is undue influence as of fact: where a party to a contract can demonstrate that undue influence was in fact exerted, then that contract will be set aside.

Question 14

describe the facts of O’Flanagan v. Ray Ger Ltd

Answer 14

Parties were joint shareholder, one was close to death from cancer. In the pub, the other got the dying one to agree that whoever died first would transfer over their property to the other. He agreed despite having 8 children. Transaction was set aside as the other shareholder had a strong and forceful personality and had obviously exercised considerable undue influence amounting to domination of the deceased on previous occasions. For such transactions no need to show it required explanation

Question 15

what is presumed undue influence?

Answer 15

Presumption based on a pre existing relationship of trust and confidence and proof that the transaction was one which requires explanation.

Question 16

what type of relationships raise the presumption of undue influence

Answer 16

the relationship itself raises the presumption e.g. doctor/

patient, solicitor/ client, parent/ child etc.

Question 17

what are the facts of McMackin v. Hibernian Bank

Answer 17

Parent and child. Here the pl signed off the guarantee for his mothers debts. Given the special relationship between them, it was presumed that there was undue influence.

Question 18

what are the facts of white v meade

Answer 18

Spiritual adviser convinced pl to transfer her wealth.

Question 19

what are the two classes of presumed undue influence and explanation

Answer 19

1. Presumption on relationship
   - this is where the presumption arises from the relationship
2. Relationship characterises by trust and confidence
   - This is where the presumption arises, not by the relationship as such, but the trust and confidence existing in the relationship. This complainant must prove that such a relationship exists and requires explanation