"It is assumed that the parties know their own minds, that they are the best judges of their own needs and circumstances, that they will calculate the risks and future contingencies that are relevant, and that all these enter into the bargain. It follows that unfairness of the bargain – gross inadequacy or excess of price – is irrelevant, and that once made, the contract is binding.” This harsh quotation of Atiyah reveals the severity and the power given to contractual agreements by the English law. The English system through its particular tools of creation of the law created two theories softening the rule set by the contractual agreement. Indeed the consent of a contracting party may have been obtained by some form of pressure, which the law regards as improper. The victim of such pressure may be entitled to relief under the common law of duress, and under the equitable rules of undue influence. Treating this issue is a choice that can appear particularly relevant providing the specificity of the concerned concepts and the necessity to point out the differences of the common law and the equity as regards to the French legal system.
[...] The use of this power is illustrated by the case O'Sullivan v Management Agency and Music Ltd[65] where the claimant sought to set aside for undue influence a number of music materials. The defendant argued that rescission should not be allowed as they could no longer be restored to their pre- contract position because of the work which had been done. The claimant argued that rescission for undue influence was not subject to any requirement of restitution at all. Finally, the Court rejected both arguments holding that even tough precise restitution was not possible; rescission could be ordered so long as the Court could do substantial justice. [...]
[...] Besides, the general effect of Etridge might have been to reduce the practical significance of the presumption of Undue Influence and to focus the attention of lawyers on the need for the claimant to prove his case. The greater the disadvantage to the vulnerable person, the more convincing the explanation given by the other before the presumption of undue influence will be rebutted. A recent case has however raised concerns because it changes the way to rebut the presumption as established under Etridge[60]. [...]
[...] Furthermore, Class 2 undue influence can be subdivided between Class 2A where a relationship of trust and confidence will be automatically presumed and Class 2B where the existence of undue influence is possible but more uncertain. Even if the distinction traditionally used has been much reduced as a result of the decision of the House of Lords in Etridge[38], it clearly makes sense to distinguish between cases of Undue Influence based on forms of “improper pressure” and cases of Undue Influence based on the exploitation of some position of trust Class 1 : Actual Undue Influence The leading case which describes actual undue influence is Allcard v Skinner[39] where the court has been satisfied that gift was the result of influence expressly used or done by the donee for the purpose”. [...]
[...] Indeed, there are certain “Equitable Maxims” which reveal their relevance as regards to the study of duress and undue influence: - who seeks equity must do equity”; The fairness and good faith of the claimant is a condition for him to obtain the remedy. - who comes to equity must come with clean hands”. The behavior of the claimant must have been appropriate in the past. - “Delay defeats equity”. Remedies are lost by an unreasonable lapse of time. Cases of alleged undue influence have caused considerable difficulties for the courts in recent years. [...]
[...] The question to be decided in each case is whether the party was a free and voluntary agent.” It is an intriguing question whether, in order to gain the benefit of the presumption, plaintiffs such as these who face some difficulty in proving a causal nexus between a transfer and a particular episode of violence or illegitimate pressure, must invoke undue influence, rather than duress, there being no tradition of a presumption of duress from a history of violence. There is in any case a fine line between the presumption and a simple shifting of the onus of the proof. [...]
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