Vitiating factors

Question 1

Duress

Answer 1

Coercion has been exerted on one of the parties to make them act in a way or force them to act in a way that they wouldn’t normally act.

Question 2

Duress must consist of such pressure…

Answer 2

as would cause a resonable person to something they would not otherwise do

Question 3

Contract is voidable if…

Answer 3

one of the parties experiences duress by the person seeking to escape the contract.

Question 4

Elements of duress

Answer 4

Coercion - Whether illegitimate pressure has been applied by the person now seeking to enforce the contract

Has to have caused a change in behaviour - Whether the illegitimate pressure has induced the victim to enter into a contract

Question 5

Types of duress to the person or their property (3)

Answer 5

• Actual violence
• Threatened violence
• Threats of imprisonment

Question 6

Economic of duress

Answer 6

Where one party enters into a contract because of threats affecting that parties economic interest

Question 7

Requirements for coercion (4)

Answer 7

1. Did the complaining party protest?
2. At the time of the alleged coercion, did the complaining party have an adequate legal remedy?
3. Was the complaining independently advised
4. Did the complaining party after entering the new contract take steps to avoid it ?

Question 8

Undue Influence

Question 9

Presumed relationships of trust (6)

Answer 9

• Parent and child
• Guardian and ward
• doctor and patient
• solicitor and client
• trustee and beneficiary
• religious advisor and parishioner

Question 10

Proved relationships of trust is…

Answer 10

the party that wishes to plead undue influence must first prove that the relationship in fact was one of trust and reliance
- if successful undue influence is assumed

Question 11

actual undue influence

Answer 11

Transaction not readily explicable by the parties relationship

Question 12

Rebutting the presumption (3)

Answer 12

• Independent legal advice
• Other independent advice
• the character of alleged “weaker party”

Question 13

Actual undue influence (5)

Answer 13

• the other party has the capacity to influence the complaint (or someone who did); and
• The influence was exercised; and
• The exercise was undue; and
• It’s exercise brought about the transaction; and
• The transaction was to the manifest disadvantage of the complaint

Question 14

Unconscionable bargain

Question 15

Special disadvantage (10)

Answer 15

• Poverty
• need
• sickness
• ages
• mental illness
• infirmity
• drunkenness
• illiteracy
• lack of education
• language

Question 16

Knowledge

Answer 16

The stronger party must know of the weaker parties special disadvantage

Question 17

Victimisation

Answer 17

1. Active extortion of a benefit
2. passive acceptance of a benefit in unconscionable circumstances

Question 18

Remedies (3)

Answer 18

• contract voidable on behalf of the weaker party
• Return parties to original position
• replace contract with deal they thought they were originally getting

Question 19

limitations on relief

Answer 19

• Dominant party must be the wrong doer
• laches
• ratification - a person who seeks equity must do equity