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Chapter

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.

Chapter

Cover Poole's Textbook on Contract Law

10. Duress, undue influence, and unconscionable bargains  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter examines the doctrines of duress and undue influence, both of which provide a means for a person to avoid a concluded contract into which he entered due to threats or unfair pressures or influence exerted on him. It also looks at the circumstances in which the courts or Parliament have intervened to prevent one party from taking advantage of another. Duress refers to some form of coercion or threat to the person, property, or to a person’s financial interests (economic duress). Undue influence can arise if there is illegitimate pressure and abuse exerted by one party over the other (actual undue influence) or if something in the transaction is suspicious or calls for an explanation (evidential undue influence). The chapter also considers unconscionable bargaining, procedural and substantive unfairness, consumer legislation, and the link between unconscionability and undue influence.

Chapter

Cover Poole's Casebook on Contract Law

10. Duress, undue influence, and unconscionable bargains  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines further vitiating factors which relate to the way in which the contract was entered into and render it voidable. It discusses the doctrines of duress and undue influence and whether contracts are affected by a general doctrine of unconscionability relating to the manner of formation and content relative to the nature and position of the contracting parties. The doctrine of economic duress allows for any contract to be set aside where unlawful threats to financial position were made in order to secure agreement. This doctrine is still evolving but represents a mechanism to prevent the enforceability of promises not freely given. Under the doctrine of undue influence, a contract may be set aside if one party has put unfair and improper pressure on the other in the negotiations leading up to the contract. The courts of equity have developed undue influence as one of the grounds of relief to prevent abuse of the influence of one person over another, particularly where the influence results from the nature of the relationship between the parties. The chapter examines types of undue influence, actual undue influence, presumed (or evidential) undue influence, undue influence exercised by a third party, the legal effect of undue influence, and the relationship between undue influence and unconscionability.

Chapter

Cover Concentrate Questions and Answers Land Law

12. Mortgages  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions about the law of mortgages. The questions deal with issues such as their creation; clogs on the equity of redemption; the remedies of a mortgagee and protection of the mortgagor; and undue influence. Remedies of a mortgagee where the mortgagor defaults is an area of the law where, over recent years, the courts have had to consider entirely new social circumstances in relation to ‘negative equity’ and mortgage debt.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

22. Additional chapter: Capacity  

This chapter considers the scope of contractual capacity, noting the tension in the law between the need to protect someone who is incapacitated and the desire to not treat too harshly the person dealing fairly with the incapacitated person. The general rule is that a minor will not be bound by a contract, although the person contracting with them will be. There are exceptions which will bind both parties unless the minor repudiates, and on becoming 18 a minor may ratify a contract made before that date. The law recognizes the general incapacity to contract of minors, the mentally incapacitated, and in certain circumstances where an individual is intoxicated. An adult of sound mind has full contractual capacity, although they may be able to claim that the contract is not enforceable on some other basis, for example undue influence.

Chapter

Cover Business Law

7. Factors Affecting The Validity of a Contract  

This chapter discusses how the manner in which a contract is concluded can potentially affect its validity. Before discussing the terms and details of a contract, it is important to note that a contract may fail due to one or both parties not possessing the capacity to establish a contract. Some of the common reasons includes a mistake by one or both parties, a provision that has been misrepresented in the negotiations, or the use of undue influence or placing the other party under duress in the process of concluding the contract. Some of the reasons listed in this chapter may be common, but the emphasis here is to identify where problems may occur that could prevent the successful operation of the contract despite fulfilling the essential features discussed in the previous chapters.

Chapter

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.

Chapter

Cover Poole's Casebook on Contract Law

10. Duress, undue influence, and unconscionable bargains  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines further vitiating factors which relate to the way in which the contract was entered into and render it voidable. It discusses the doctrines of duress and undue influence and whether contracts are affected by a general doctrine of unconscionability relating to the manner of formation and content relative to the nature and position of the contracting parties. The doctrine of economic duress allows for any contract to be set aside where unlawful threats to financial position were made in order to secure agreement. This doctrine is still evolving but represents a mechanism to prevent the enforceability of promises not freely given. Under the doctrine of undue influence, a contract may be set aside if one party has put unfair and improper pressure on the other in the negotiations leading up to the contract. The courts of equity have developed undue influence as one of the grounds of relief to prevent abuse of the influence of one person over another, particularly where the influence results from the nature of the relationship between the parties. The chapter examines types of undue influence, actual undue influence, presumed (or evidential) undue influence, undue influence exercised by a third party, the legal effect of undue influence, and the relationship between undue influence and unconscionability.

Chapter

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.

Chapter

Cover Land Law

13. Mortgages  

This chapter examines mortgages—a form of proprietary security for the advancement of a loan. A bank or lender advances a loan and in return they are granted a mortgage: an interest in the borrower’s land. Mortgages are distinct from other loans because they are ‘secured’ on the property itself meaning that if the borrower fails to make repayments, the bank can take steps to recover its money including seeking possession of the property and selling it. This chapter explores the nature and creation of mortgages, the rights and powers enjoyed by mortgagors, the rights of mortgagees, the effect of undue influence on mortgages, and the priority of mortgages.

Chapter

Cover Introduction to Business Law

7. Vitiating Factors  

A contract may meet the necessary formation requirements of offer and acceptance, consideration, and intention to create legal relations, but still not be binding because it lacks other necessary factors. These invalidating factors are sometimes referred to as ‘vitiating factors’. This chapter discusses statements that constitute actionable misrepresentations; the difference between fraudulent, negligent, and innocent misrepresentation; the remedies available for each type of misrepresentation; and the effect a misrepresentation will have on the validity of a contract. The chapter considers types of mistake and when a court will regard a mistake as an operative mistake rendering the contract void. It also considers how duress and undue influence may arise, the presumptions relating to undue influence, and whether the presence of duress and undue influence will make a contract voidable. Finally, the chapter considers types of contract that are illegal under statute and under common law.

Chapter

Cover Business Law Concentrate

3. Contract II: mistake, misrepresentation, 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. This chapter considers contract law and the factors that may affect the contract or its validity: mistake, misrepresentation, duress, and undue influence. A contract may be held void due to a fundamental mistake, as the parties did not have a true agreement. An action under misrepresentation is available if an untrue representation is considered ‘actionable’. If a contract is established on the basis of violence (or a threat), or unlawful economic pressure, this may be considered to be a case of duress. Where undue influence has been used to form the contract, it will be voidable.

Chapter

Cover Contract Law Directions

9. Duress, undue influence and unconscionable bargains  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter focuses on the principles applicable where a contract is entered into after there have been threats or improper influence brought to bear on one party or where the one-sided nature of the contract suggests that one party has been taken advantage of. The discussions cover duress (duress and pressure, threats against the person, threats against goods and economic duress); undue influence (actual undue influence, presumed undue influence and third-party cases); and unfairness and unconscionable bargains.

Chapter

Cover Essential Cases: Contract Law

Royal Bank of Scotland v Etridge (No.2) [2001] UKHL 44  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Royal Bank of Scotland v Etridge (No. 2) [2001] UKHL 44. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Equity & Trusts

Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Contract Law 5e

Royal Bank of Scotland v Etridge (No.2) [2001] UKHL 44  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Royal Bank of Scotland v Etridge (No. 2) [2001] UKHL 44. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Equity & Trusts

Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Thompson's Modern Land Law

10. Mortgages  

A mortgage is a form of security for a loan, the purpose of which is often to finance the purchase of a house. This type of mortgage is known as acquisition mortgage. The house can also be used as security for other borrowing (for example, to pay for an extension to a house) or to finance a small business. Such mortgages are generally termed second, or even third, mortgages. The person who creates the mortgage is called the mortgagor and the person in whose favour it is created is called the mortgagee. The mortgagee is a secured creditor and can transfer the mortgage to another person. This chapter, which focuses on the nature of mortgages and how they are created, also discusses the role of mortgages, types of mortgage, rights of the mortgagor, rights and remedies of the mortgagee, the question of undue influence, and priority of mortgages.