indue influence

Question 1

Undue influence : origin + form

Answer 1

• creature of equity

- basic distinction : actual undue influenced ≠ presumed undue influence.

Question 2

Actual undue influence

Answer 2

• many similarities with CL duress
• generally consist of the application of illegitimate pressure but would appear to extend to other forms of wrongdoing such as “overreaching” and “cheating”

Question 3

Presumed undue influence

Answer 3

• more difficult to classify
• essential idea = one party has taken advantage of a relationship of trust and confidence to the substantial detriment of the party who has reposed the trus and confidence in him.
• difficulty of the court -> identifying the circumstances which have the effect of triggering the operation of the presumption
• rebuttable presumption : can be by showing that entry into the transaction was the result of the free exercise of independent will be the party seeking to set aside the transaction.

Question 4

Seem to be 2 principal elements that the operation of presumed undue influence

Answer 4

• > a relationship of sufficient trust and confidence btween the parties
• > the transaction that has taken place btween the parties must not be explicable in terms of the ordinary motives on which ordinary people act.

Question 5

General approach of the courts about UI

Answer 5

• generally reluctant to attempt a comprehensive definition of UI
• tend to emphasize the fact and circumstances of the individual case= thus relationship are “infinitely various” and no description of the relevant factor is “perfect” or “all embracing”.
• emphasize not only on influence but also “avuse” or “misuse” of that influence -> in this sense UI has been said to have connotation of impropriety

Question 6

Constructive notice

Answer 6

is the legal fiction that signifies that a person or entity should have known, as a reasonable person would have, even if they have no actual knowledge of it.
cf. Barclays bank v. O’brien