Chapter

On the Nature of Undue Influence

Peter Birks and Chin Nyuk Yin

in Good Faith and Fault in Contract Law

Published in print August 1997 | ISBN: 9780198265788
Published online March 2012 | e-ISBN: 9780191682964 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198265788.003.0003
On the Nature of Undue Influence

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This chapter analyses undue influence, not as a matter of ‘victimization’, which implies wicked exploitation by the defendant, but as a matter of ‘excessive dependence’ on the part of the plaintiff. Resisting current tendencies to assimilate undue influence to unconscionable behaviour, it argues that all cases of improper pressure which have been litigated as undue influence can and should now be classified as duress. In the cases that remain, which are viewed as ‘true’ undue influence, the ground of rescission is solely the marked impairment of the plaintiff's capacity to make an independent judgment, that impairment arising from loss of autonomy brought about by the nature of the relationship between the two parties.

Keywords: undue influence; duress; litigation; impairment

Chapter.  19945 words. 

Subjects: Civil Law

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