Tutorial 15 This contract seem as though there is consensus. Sandile made an offer and Buli accepted. However, the consensus that was obtained was obtained improperly. Consensus can be improperly obtained mainly in 3 ways: 1. Duress 2. Misrep 3. Undue influence How did Sandile obtain Buli’s consensus improperly? Issue: Sandile pressured Buli into entering into the 2 nd contract, not by violence, but he abused the relationship he had with Buli in order to influence his decision to contract. Thus this is undue influence. Principles: The principles were set out by Patel v Grobbelaar, Buli must prove the following: 1. the wrongdoer has influence over the innocent party Influence exists when the stronger party is in a position of dominance over the weaker party, or the weaker party is financially or emotionally dependant upon the stronger party. 2. which reduces the resistance of the innocent party The influence must reduce the innocent party’s capacity to make independent decisions, making will pliable, flexible. As a result the innocent party isn’t really making a free decision to contract. 3. an unconscionable use of the influence The wrongdoer must have used hid influence in an unscrupulous (exploitative) manner. Meaning of this concept is unclear: is it a moral aspect? The wrongdoer acted immorally or in bad faith. Does it refer to wrongfulness? The wrongdoer must be wrongful according to the legal convictions of the community. 4. induced the innocent party to contract Undue influence will only be actionable if it actually induced the innocent party to contract on the terms that he did. Causal influence can take 2 forms: i. Fundamental influence: the innocent party would not have entered into the contract at all without the influence.
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