Undue influence is normally used in situations where gifts or contracts are tainted bypressure (normally pressure operating on the servient party’s mind) which falls short ofduress. The influence required to substantiate such a plea can arise through:a relationship of trust or confidence (in which case the existence of the requiredinfluence is presumed); oreither actual coercion or general domination of the servient party’s will (ie expressinfluence).Therefore, if a parent obtains an undue benefit when dealing with his or her child, a solicitorwhen dealing with his or her client, a doctor when dealing with his or her patient, a trusteewhen dealing with a beneficiary of the trust or a religious adviser when dealing with one ofhis or her adherents, the dealing can be overturned and the court can order that anyunfairly obtained benefits be returned. UnconscionabilityThe common law positionAt common law harsh and unconscionable contracts were both valid and enforceable. Thelaw generally took the view that parties who entered into contracts knowing what theyinvolved but hoping that their harsher aspects would not be activated, would not be assistedif the worst happened and the harsher aspects of the agreement had to be performed. This view has now been somewhat softened with the result that contracts resulting from oneparty’s unconscionable conduct can often be set aside. A plea of unconscionability willusually succeed if one party has deliberately and unconscionably exploited the other’sweakness in order to obtain some contractual benefit. For instance, in CBA v Amadio(1983) 151 CLR 447, the Commercial Bank of Australiainduced an elderly migrant couple with poor business and English language skills to sign amortgage and guarantee in its favour to secure their son’s company’s overdraft. TheAmadios believed that this was a mere formality, that the company was secure and thattheir liability was limited. The bank knew that that was not the case. When the companywent into liquidation the bank tried to exercise the guarantee and the Amadios applied tohave it set aside. They succeeded. The High Court held that the bank had obtained theguarantee through unconscionable conduct. The Amadios had been under a specialdisability vis-à-visthe bank in both their actual knowledge and their ability to understandwhat they were doing. The bank had also been aware of that special disability and itsactions in procuring the Amadios’ signatures, in the circumstances in which they wereprocured, were clearly unfair and unconscionable. It should have ensured that the Amadios
As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.
Temple University Fox School of Business ‘17, Course Hero Intern
I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.
University of Pennsylvania ‘17, Course Hero Intern
The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.
Tulane University ‘16, Course Hero Intern
Ask Expert Tutors
You can ask 0 bonus questions
You can ask 0 questions (0 expire soon)
You can ask 0 questions
(will expire )