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Cover Contract Law Concentrate

10. Duress and undue influence  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The doctrines of duress and undue influence may result in a contract being set aside (the remedy of rescission) where illegitimate pressure has been used in the contracting process. This chapter focuses on instances where the agreement cannot stand in light of duress or undue influence, including instances where the duress or undue influence was exercised by a third party and the contracting party had notice of that duress or undue influence.

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Cover Complete Contract Law

15. Undue Influence, Unconscionability, and Equality of Bargaining Power  

This chapter examines undue influence, which is largely about pressure and influence arising from a relationship. It begins with the basic role of the law on undue influence before moving to the substantive case law. The case law is divided into three categories, which are based on the different ways of proving undue influence. The first relates to what is known as ‘actual undue influence’, which is where a complainant proves undue influence. The second is where undue influence between two parties can be presumed from the circumstances. The third category has been a major problem in modern cases and it involves undue influence coming from a third party. The chapter then turns to the wider issues that complete the ‘bigger picture’. The first of these is the area often referred to as ‘unconscionability’, which is about the exploitation of weakness. The second is the attempt to create a wider ‘inequality of bargaining power’ principle. Finally, the chapter looks at the Consumer Protection from Unfair Trading Practices Regulations 2008, which can cover conduct otherwise classed as duress, undue influence, and harassment.

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Cover JC Smith's The Law of Contract

18. Undue influence  

This chapter examines ‘undue influence’. In a typical case, C claims that a transaction should be set aside because C reposed trust and confidence in D, and the influence that D had upon C was exerted in a way which was ‘undue’. The effect is to render a contract voidable such that it can be rescinded. The basis of undue influence is controversial: it has been argued both that undue influence is based upon D’s exploitation of the relationship, and that the focus is solely upon C’s impaired consent. There are two ways of proving undue influence, which explains actual undue influence and presumed undue influence. Actual undue influence is distinct, though there are overlapping areas, from duress since there is no need to prove a threat or illegitimate pressure. Presumed undue influence requires C to prove that C placed trust in D and that the transaction calls for explanation.