Undue Influence

As James Munby firmly stated, it is impossible to trace, and difficult even to describe, at what point at which the sour becomes, in the eye of law, unreasonable. The doctrine of unwarranted class period has been agreed upon as the ground of relief developed by the courts of equity as a court of conscience. It is an ordinary behaviour to form individuals and persuade them to enter into proceedings. However, the position is to ensure that the influence exercised is not abused.On the grounds of these c erstwhilepts, it is impossible to counterbalance a flawless higher classic criterion to be today applied in every case to recognize whether unwarrantable influence had been exercised or not. Attempting to do that has been problematic. Firstly, courts have not been able to always distinguish between inordinate influence and unconscionability dealing. Secondly, titles categorizing unjustifiable influence as either claimant-sided or defendant-sided have not been successful i n presenting undue influence as an independent doctrine.Thirdly, subdividing undue influence into categories and setting rules to a lower place them increased the possibility of misconceptions arising. Since undue influence is an equitable doctrine, the criteria set to define it ought to however provide a framework for judges to exercise their jurisdiction. Hence, it allows them to assess cases flexibly based on the particulate facts provided alternatively than looking at undue influence as a common law doctrine and applying the rules set strictly.A main difficulty in attempting to set a comprehensive definitive description of undue influence is its numerous resemblances with the unconscionability notion. The usage of the word unconscientious in describing undue influence has established an opinion that it is based on the Unconscionability Bargains doctrine. Furthermore, misconception clear be recognize in the case Lloyds situate Plc v Lucken, where Mr. Lucken had pressured M rs. Lucken to obtain a loan using her houses security. Mrs. Lucken ultimately agreed to Mr. Luckens request, and the money was lent to one of Mr.Luckens eventually failing businesses. She later claimed that the tear was imp to each oneable because Mr. Lucken had exercised undue influence upon her. The Court of collecting refused relief disputing that the pressure placed was not unconscionable. Tending to define undue influence in an excessive precise manner using the word unconscionable has earlier caused confusion and difficulty in terms of separating it from unconscionability dealing. on that pointfore, even if the two doctrines sh be similarities, they should still be distinguished.Undue twine is concerned with the quality of the consent or assent of the weaker party, while unconscionable dealing is concerned with the allot of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person to a lower place a special disability in circumstan ces where it is not consistent with equity. Legal certainty requires that they be distinct hence at that place should not be an attempt to limit undue influence to a lower place a precise definition unless it would be used to represent and clarify that it is an independent doctrine.There has been an ongoing study on whether undue influence is categorized as a claimant-oriented or defendant-oriented doctrine. The defendant approach suggests that it is by-blow or unconscionable. As Lord Hoffman stated in R v Attorney-General for England and Wales, undue influence has difficult in particular upon the unfair exploitation by one party of a relationship which acquaints him authorisation or intense everyplace the other. Including unacceptable means and unfair exploitation inwardly the definition lines it potently appear as defendant focused.Furthermore, claimant-sided orientation defines the influence as being overbearing and too high. It in the beginning aimed to different iate unconscionability from undue influence, but alternatively obliquely connected it to another doctrine. It was pointed by Birks and Chin when they said, approximately jurists will still be attracted by the simplicity of the defendant-sided analysis, and they will point out, correctly, that the number of cases in which there is no unconscionable behaviour is very smallIf there argon two doctrines, there are two doctrinesThe correct approach will be to treat both undue influence and chains as plaintiff-sided factors which ground relief based on a degree of impairment of the plaintiffs capacity to make decisions. Even though they tend to separate the two doctrines, they still tend to relate it to duress. A rising approach can be taken -that presents undue influence as a flexible doctrine- including the movement of flaws within the claimant and defendant oriented definitions.It can be said that undue influence can be both excessive (claimant-focused) and used in an improper or unconscionable manner (defendant-focused) depending on the facts of the case. whatsoever of cases set nether presumed undue influence had been miscategorised after directly applying the rules rather than interpreting the facts valuably. To prove that presumed undue influence has been exercised, the claimant has to establish a relationship of trust and confidence and consequently prove a transaction that calls for an explanation. Scepticism is apparent, as shown by Lord Browne Wilkinson when he describes those certain relationships as a proposition of law that raise the presumption that undue influence has been exercised. In other words, the relationship itself might give rise to a presumption of undue influence as applied under the two requirements. It should be observed each relationship should be interpreted individually rather than being grouped into a certain type. If jurists apply the rules rigorously, they will only be as Lord Nicholls refers to in Etridge, presuming that i nfluence exists.Presumed undue influence taxonomy appears to have characteristics that divert undue influence from its essence meaning. It had been subdivided into firstly, certain relationships as a count of law raise the presumption that undue influence had been exercised, and secondly, that the complainant proves the existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer. Even if certain relationships do fall under the categories, they should not override the evidence set in the case facts that show whether undue influence has been exercised.It is support by Lord Nicholls of Birkenhead when he says, The types of relationship, such as parent and child, in which this principle falls to be applied, cannot be listed exhaustively. Relationships are infinitely variousIt would be absurd for the law to preserve that every commit by a child to a parent, or every transaction between a invitee and his solicitor or between a patien t and his doctor, was brought about by undue influence. Due to the flaws within their definitions, the subdivisions set under presumed undue influence would only aid in describing the various parameters of previous cases.However, once jurists intend to view them as firm rules that should be applied to any case that seems to relate to a certain criteria, they will be contradicting the overall idea that the doctrine is equitable. Flaws within the definition of actual undue influence caused it to overlap with other doctrines, hence emerging to misinform its overall implication. In Royal patois of Scotland plc v Etridge , Lord Hobhouse defined it as an equitable wrong committed by the dominant party against the other which makes it unconscionable for the dominant party to enforce his legal rights against he other. Also, Lord Nicholls emphasized that precariousness builds up after subdividing the doctrine to actual undue influence, as it compromises overt acts of improper pressure ov er or in such as unlawful threats. Thus, it has much overlap with the principle of duress as this principle has subsequently developed. Flaws within the definition are evident, since it doesnt seem to directly reflect a complete definition of undue influence that doesnt overlap with other doctrines.Furthermore, in Bank of recognition and Commerce International SA v Aboody, the Court of Appeal dismissed the appeal because it had not been shown that the transactions were evidently disadvantageous to Mrs. Aboody, because even though Mr. Aboody had unduly influenced her, he had not acted with any improper motive. It appears that the Court of Appeal after recognising that the case is similar with others which had previously been classified as actual undue influence cases, had directly applied the rules set strictly under it without recognising that equity cases are variant and can be each judged valuably by their unique facts.The nature of the requirement manifestly disadvantageous w as not used as its source Lord Scarman had intended. This had been shown in the earlier case Bank of Credit and Commerce International SA v Aboody. In a narrow sense, such a transaction plainly manifestly is disadvantageous to the wife. She undertakes a serious fiscal obligation, and in return she personally receives nothing. But that would be to a relationship of solicitor and client or medical advisor and patient, in the case of husband and wife there are intent reasons wherefore such a transaction may well be for her benefit. The latter extract added the factor of function. pattern appears to be a subjective matter that would be proven under the facts of a certain case, rather than applying the rules set under the categories of undue influence. Such cases therefore, cannot be approached solely on a mathematical tail it involves a value judgment. This directly relates to the original nature of undue influence, where its flexibility should be granted rather than it being app lied under regulations.The label manifestly disadvantageous should not be rejected, but only be set to clarify possibilities of what Lords may adopt in certain undue influence cases as Lord Scarman has proposed in National Westminster Bank Plc v Morgan. Overall, since it is a well vitiated concept cognize to be an equitable jurisdiction, courts should apply the doctrine of undue influence flexibly based on the facts of the case. There have been many subdivisions and titles that were set under undue influence. Firstly, arguments on whether undue influence is claimant-oriented or defendant-oriented.Secondly, divisions that are known as actual and presumed undue influence (as well as subdivisions and requirements under them). Such criteria can be useful in describing the different parameters on what undue influence is generally all about. However, if the intention is to use it strictly to decide whether undue influence has been exercised or not, the flaws within their definitions migh t lead to misconceptions. Accordingly, reverting to the basic definition that has been agreed upon would reduce the bewilderment and increase the possibilities that courts make correct jurisdictions. - 2 . Bank of Scotland v Bennett 1997 1 F. L. R. 801. 3 . rock n roll R. and Cunnington, R. Text, Cases and Materials on turn off Law ( Routledge-Cavendish, Oxon 2007) 749 4 . Devenny and Chandler , Unconscionability and the Taxonomy of Undue operate 2007 JBL 541 5 . 1998 4 All E. R. 738 6 . Devenny and Chandler , Unconscionability and the Taxonomy of Undue Influence 2007 JBL 541 7 . Stone R. and Cunnington, R. Text, Cases and Materials on Contract Law ( Routledge-Cavendish, Oxon 2007) 753 8 . ibid 752 9 . 2003 UK PC 22 10 . McKendrick, E.Contract Law (6th edn Palgrave MacMillan, New York 2005) 11 . Stone R. and Cunnington, R. Text, Cases and Materials on Contract Law ( Routledge-Cavendish, Oxon 2007) 752 12 . Birks, P and Chin, NY, On the nature of undue influence , i n Beatson, J and Friedmann, D (eds), Good Faith and Fault in Contract Law ( Clarendon, Oxford 1995) 95 13 . ibid 758 14 . Barclays Bank v OBrien 1994 A. C. 180 at 189 15 . Enonchong, N. Presumed undue influence continuing misconceptions? (2005) LQR (accessed 12 December 2008) 16 . Royal Bank of Scotland plc v Etridge 2002 2 AC 773 17 . Stone R. and Cunnington, R. Text, Cases and Materials on Contract Law ( Routledge-Cavendish, Oxon 2007) 758-759 18 . Royal Bank of Scotland plc v Etridge 2002 2 AC 773 19 . 2002 2 AC 773 20 . McKendrick, E. Contract Law (6th edn Palgrave Macmillan, New York 2005) 365 21 . ibid 22 . 1990 1 Q. B. 923 at 953 23 . Stone R. and Cunnington, R. Text, Cases and Materials on Contract Law ( Routledge-Cavendish, Oxon 2007) 756-757 24 . Collins , H. The Law of Contract (4th edn LexisNexis, London 2003) 144-145 25 . Devenny and Chandler , Unconscionability and the Taxonomy of Undue Influence 2007 JBL 541 26 . 1985 1 AC 686 at 709