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Undue Influence And Unconscionability Notes

Law Notes > Contract Notes

This is an extract of our Undue Influence And Unconscionability document, which we sell as part of our Contract Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contract Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

UNDUE

INFLUENCE

AND


UNCONSCIONABILITY

*

*

*

*

In

almost

all

cases,

the

objective

appearance

of

consent

is

sufficient

to


give

rise

to

contractual

obligations.


In

exceptional

cases,

the

fact

that

one

parties'

consent

was

not

real

(i.e.

is


vitiated

by

some

factor)

is

taken

into

account.


In

classic

contract

law,

the

parties

are

regarded

as

robust

and

self--
interested

and

capable

of

pursuing

and

protecting

their

own

interests.


The

law

distinguishes

between

driving

a

hard

bargain

(for

which

there

is


no

relief),

and

the

abuse

of

a

position

of

relative

weakness

(which

may


lead

to

the

contract

being

rescinded).


Undue

Influence:

* This

arises

when

a

party

in

a

position

of

influence

over

another

person


exercised

that

influence

to

effect

the

weaker

party's

decision

to

enter

into


the

contract.

The

weaker

party's

consent

was

not

freely

given,

and

so

the


contract

will

be

set

aside.

* The

doctrine

reflects

'the

general

policy

of

the

law

directed

to

preventing


the

possible

abuse

of

relationships

of

trust

and

confidence'


o Johnson

v

Buttress

(1936)

56

CLR

113,

123

per

Latham

CJ.


Types

of

Undue

Influence:

1. Actual

undue

influence:

one

party

alleges

the

other

actually

exerted


undue

influence

which

affected

the

judgment

of

the

innocent

party

in


entering

into

the

contract.

* The

weaker

party

must

prove

that

the

stronger

party

actually

exercised

a


controlling

influence

over

the

weaker

party.

2.

Presumed

undue

influence:

a

relationship

of

presumed

influence

(a


relationship

of

trust

and

confidence)

existed

between

the

parties

prior

to

the


contract.

* If

a

relationship

of

influence

existed,

the

contract

is

presumed

to

have


been

concluded

as

the

result

of

this

influence.

The

stronger

party

must


prove

the

contract

was

not

the

result

of

this

influence.


Establishing

Undue

Influence:

* Relationships

in

which

influence

is

presumed


o The

law

deems

certain

relationships

to

be

relationships

of


influence:

eg

parent--child,

solicitor--client,

doctor--patient.


o There

is

no

presumption

in

relationships

between

husbands

&


wives,

accountants

&

clients,

or

financial

advisors

&

clients.

Buy the full version of these notes or essay plans and more in our Contract Notes.