BUSINESS LAW
1.Distinguish undue influence from duress?
ANSWER
Undue influence is a more subtle form of pressure which may be brought to bear in the negotiating period and which can generate the remedy of rescission. Sometimes, on the face of it, in these sorts of cases the ascendant party has not really done anything wrong. These sorts of cases may be ones where the so-called "victim" has willingly entered into the contract. This is to be contrasted with cases under the heading of duress where the victim is unwilling, but has no real choice. Yet the law takes a protective stance and dictates that the ascendant party must not be allowed to benefit from a contract or gift (these cases also apply to gifts) when the relationship between the parties is unbalanced. The onus is then on the ascendant party who may be able to persuade a court that, even though the relationship was unbalanced, nevertheless the contract was perfectly proper and above board and should not be set aside.
Undue influence cases fall into two categories:
• those where there is a presumption of undue influence because the law assumes that the ascendant party must have taken advantage of the other party; and
• those where there is an appearance of undue influence in the particular circumstances of the case. This latter category might be called ad hoc undue influence.
Undue Influence, Actual: is an equitable remedy available when the plaintiff can prove that the defendant inappropriately influenced the plaintiff to enter into a contract. Lack of independent advice will be considered, but a manifest disadvantage does not have to exist for actual undue influence to be established. Actual undue influence and duress are very similar. Contracts resulting from undue influen ...