Lecture 5 BFA601 Semester 1 2018.pptx

Rectification might be the most appropriate remedy

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Rectification might be the most appropriate remedy Statutory remedies might be available for misleading and deceptive conduct under the ACL provisions for unconscionable conduct. Equity may grant relief in exceptional circumstances (5.54) Equity may grant relief in exceptional circumstances (5.54)
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Misleading conduct in contract law Misleading conduct in contract law If a person does not freely and voluntarily enter a contract, there is no mutual agreement and the contract may be void Duress, undue influence and unconscionable conduct (5.56) Duress, undue influence and unconscionable conduct (5.56)
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Misleading conduct in contract law Misleading conduct in contract law Where threats of violence are used against another person in order to push them into an agreement, then the contract may be voidable at the option of party suffering the duress. Duress (5.57) Duress (5.57)
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Misleading conduct in contract law Misleading conduct in contract law Duress can be: Threat of physical violence to a person or their relatives Duress to goods Economic duress Other duress, e.g. commission of unlawful acts, threats of legal action or other threats Barton v Armstrong [1976] Duress (5.57) Duress (5.57)
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Misleading conduct in contract law Misleading conduct in contract law Universe Tankships Inc of Monrovia v International Transport Workers’ Federation (The Universe Sentinel) Smith v William Charlick Ltd Economic duress (5.61) Economic duress (5.61)
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Misleading conduct in contract law Misleading conduct in contract law Undue influence is an equitable doctrine Undue influence occurs where pressure has been applied against a weaker party, so that their consent has not been freely given Was the duress such that a weaker party did not give their free and voluntary consent to the agreement Is there a special relationship: teacher, lawyer, parent, carer etc? Undue influence (5.64) Undue influence (5.64)
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Misleading conduct in contract law Misleading conduct in contract law The law presumes that where a special relationship exists, then a presumption of undue influence arises. The stronger party must rebut the presumption they have used undue influence Was there any independent advice? Was there any threats, what were they? Lloyds Bank Ltd v Bundy [1974] Presumption of innocence (5.64 - 66) Presumption of innocence (5.64 - 66)
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Misleading conduct in contract law Misleading conduct in contract law Westmelton (Vic) Pty Ltd v Archer & Shulman However, if a party makes a non disclosure and profits from advice, this can be undue influence Tate v Williamson Presumption of innocence can be rebutted (5.66) Presumption of innocence can be rebutted (5.66)
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Misleading conduct in contract law Misleading conduct in contract law Yerkey v Jones Bank of Victoria v Mueller Garcia v National Australia Bank Ltd English cases: Barclays Bank plc v O.’Brien [1994] Royal Bank of Scotland v Etridge (No 2) Did person claiming undue influence actually understand the contract? (5.67 - 68) Did person claiming undue influence actually understand the contract? (5.67 - 68)
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