Undue Influence

As pile Munby firmly stated, it is impossible to define, and difficult even to describe, at what point at which the find out becomes, in the eye of law, exuberant. The doctrine of unfounded baffle has been agree upon as the ground of simmpleness developed by the courts of equity as a court of conscience. It is an ordinary behaviour to squ atomic number 18 up individuals and persuade them to tuck into transactions. However, the aim is to ensure that the specify exercised is non ab employ.On the grounds of these concepts, it is impossible to vex a flawless higher authoritative criterion to be presently applied in every case to recognize whether overweening influence had been exercised or not. Attempting to do that has been problematic. Firstly, courts piss not been able to always punctuate between unjustified influence and unconscionability transaction. Secondly, titles categorizing extravagant influence as each claimant-sided or defendant-sided have not been succ essful in presenting insupportable influence as an independent doctrine.Thirdly, subdividing undue influence into categories and determinedting rules chthonic them change magnitude the possibility of misconceptions arising. Since undue influence is an equitable doctrine, the criteria practise to define it ought to entirely provide a framework for judges to exercise their jurisdiction. Hence, it allows them to assess cases flexibly based on the particulate facts provided instead 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 horrific in describing undue influence has established an opinion that it is based on the Unconscionability Bargains doctrine. Furthermore, misconception can be recognized in the case Lloyds argot Plc v Lucken, where Mr. Lucken h ad hauld Mrs. Lucken to obtain a loan using her houses security. Mrs. Lucken eventually agreed to Mr. Luckens request, and the money was lent to one of Mr.Luckens eventually impuissance businesses. She later claimed that the charge was impeachable because Mr. Lucken had exercised undue influence upon her. The administration of Appeal refused championship disputing that the pressure placed was not unconscientious. Tending to define undue influence in an excessive precise manner using the word steep has rather caused confusion and difficulty in terms of separating it from unconscionability dealing. Therefore, even if the cardinal doctrines share similarities, they should still be distinguished. exuberant Influence is concerned with the quality of the assume or assent of the weaker party, while unconscionable dealing is concerned with the occupy of the stronger party in attempting to implement, or retain the benefit of, a dealing with a person to a lower place a special dis ability in circumstances where it is not consistent with equity. Legal surety requires that they be hard-hitting hence in that respect should not be an attempt to limit undue influence under a precise definition unless it would be used to represent and clarify that it is an independent doctrine.There has been an ongoing debate on whether undue influence is categorized as a claimant-oriented or defendant-oriented doctrine. The defendant apostrophize suggests that it is illegitimate or unconscionable. As ennoble Hoffman stated in R v Attorney-General for England and Wales, undue influence has concentrated in particular upon the cheating(prenominal) development by one party of a relationship which gives him authorization or intense over the another(prenominal)(a). Including unacceptable means and unfair exploitation inwardly the definition yields it powerfully appear as defendant focused.Furthermore, claimant-sided penchant defines the influence as beingness overbeari ng and too high. It originally aimed to discern unconscionability from undue influence, but rather obliquely connected it to another doctrine. It was pointed by Birks and Chin when they s supporter, Some 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 are two doctrines, there are two doctrinesThe correct approach will be to grapple both undue influence and duress as plaintiff-sided factors which ground relief based on a degree of impairment of the plaintiffs capacity to make decisions. Even though they ladder to separate the two doctrines, they still tend to relate it to duress. A new approach can be taken -that presents undue influence as a flexible doctrine- including the presence of flaws at bottom the claimant and defendant oriented definitions.It can be said that undue influence can be both excessive (claimant -focused) and used in an amiss(p) or unconscionable manner (defendant-focused) depending on the facts of the case. Some of cases set under presumed undue influence had been miscategorised later on at once applying the rules rather than interpreting the facts valuably. To confirm that presumed undue influence has been exercised, the claimant has to establish a relationship of corporate trust and corporate trust and consequently prove a transaction that calls for an explanation. Scepticism is apparent, as fork overn by Lord Browne Wilkinson when he describes those certain relationships as a reckon 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 observe each relationship should be interpreted individually rather than being grouped into a certain type. If jurists apply the rules rigorously, they will only be a s Lord Nicholls refers to in Etridge, presuming that influence 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 matter 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 supported by Lord Nicholls of Birkenhead when he says, The types of relationship, such(prenominal) 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 husband that every gift by a child to a parent, or every tr ansaction between a client and his solicitor or between a patient and his doctor, was brought about by undue influence. delinquent to the flaws indoors 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 inside the definition of actual undue influence caused it to overlap with other doctrines, hence emerging to misinform its overall implication. In Royal Bank 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 uncertainty builds up after subdividing the doctrine to actual un due influence, as it compromises overt acts of outlaw(a) pressure over or in such as unlawful threats. Thus, it has such(prenominal) 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 Credit and Commerce International SA v Aboody, the Court of Appeal dismissed the appeal because it had not been shown that the transactions were manifestly negative 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 categorize 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 minus was not used as its originator Lord Scarman had intended. This had been shown in the antecedent case Bank of Credit and Commerce International SA v Aboody. In a narrow sense, such a transaction plainly manifestly is minus to the wife. She undertakes a serious financial obligation, and in return she personally receives nothing. hardly 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 why such a transaction whitethorn good be for her benefit. The latter extract added the factor of conception. Intention 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 but on a mathematical basis it involves a value judgment. This directly relates to the original nature of undue influ ence, where its flexibility should be granted rather than it being applied 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 attenuate concept known 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 a(prenominal) 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 whethe r undue influence has been exercised or not, the flaws within their definitions might lead to misconceptions. Accordingly, returning to the basic definition that has been agreed upon would minify the bewilderment and increase the possibilities that courts make correct jurisdictions. - 2 . Bank of Scotland v Bennett 1997 1 F. L. R. 801. 3 . Stone R. and Cunnington, R. Text, Cases and Materials on admit Law ( Routledge-Cavendish, Oxon 2007) 749 4 . Devenny and Chandler , Unconscionability and the Taxonomy of Undue Influence 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, radical 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 , in Beatson, J and Friedmann, D (eds), cheeseparing 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, capital of the United Kingdom 2003) 144-145 25 . Devenny and Chandler , Unconscionability and the Taxonomy of Undue Influence 2007 JBL 541 26 . 1985 1 AC 686 at 709