M34A12 Commercial Law

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M34A12 Commercial Law

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M34A12 Commercial Law

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Course Code: M34A12
University: University Of The West Of England

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Country: United Kingdom

Question:

You are employed as an in-house solicitor with a charity registered in England, which – amongst other things – campaigns for legal reforms that protect the interests of vulnerable groups in society. Due to some recent high-profile cases, the charity has concerns that the existing legal rules on undue influence may not provide sufficient protection to certain groups of people entering legal transactions.
You are tasked with preparing a briefing paper for the directors of the charity, examining the issue of undue influence and whether the existing rules are adequate. In particular, your briefing paper should:

Briefly explain what undue influence is and the circumstances under which it is deemed to occur;
Discuss and assess whether the current rules on undue influence are sufficiently clear or if the application of the rules points to certain ambiguities;
Assess whether the rules provide sufficient protection to those at risk of being taken advantage of;
Suggest any ways in which the rules might, in your view, be improved.

Answer:

Briefing Paper
This Briefing paper has been prepared for the Board of Directors of the Charity and consist the issues and suggestions related to undue Influence.
Introduction 
Certainly, Undue influence is a lead issue in today’s time. Not only in business transactions but also in other fields such as inheritance, will, and Probates the same exists. In order to develop a briefing paper on this subject, this is necessary to mention that the issue of undue influence is mostly involved in contracts. This is to state that undue influence is a curse for the independent business society. This is the reason due to that; parties of the cases are not free to take their decisions. This concern is not limited up to an area or a country but affect the whole world. Characteristics and situations of Undue Influence are already defined. Further, Undue influence has some of it is kinds and principles that are mentioned in the further discussion. Many of the cases related to the concern have reported in recent years. It is the liability of the authorities to prevent such issue and cases. Although, many of the rules have made to prevent the same yet this issue requires a better attention and laws. Unlike to other issues, this issue is not in general in nature and affects some particular and identified groups of society. In addition to the commercial, the same also has social nature and impacts. While making a briefing paper on this concern, one needs to know that what exactly undue influence means. This subjective briefing paper cover and consist of the meaning, provision, rules, their ambiguities and suggestion related to undue influence.
What undue influence is?
In a general language, Undue Influence is a situation in that one-person holds an influencing position or relationship with other person and due to such position, the other person binds to take a decision without his/her own will and consent. In the language of jurisprudence, undue influence is an equitable doctrine where one person takes advantage of his/her powerful or superior position over another party. It can also explained as that where a party of the transaction does not take decision according to his/her own wish but the another party of the case influences the choices and decision of first party, then such as situation called “Undue Influence”
One can commonly find the Undue influence in cases of Contract law and Probate Law. Which relationship will be treated as the relationship of influence has defined in the case of Johnson v Buttress. In the cited case, the lead issue was the approach of presumed and actual undue influence. Both Actual and Presumed Undue Influences are defined hereunder:-
Actual Undue Influence: -In such kind of influence, a well-defined relationship exists between the plaintiff and defendant and it is proven that the defendant carries an influence over the plaintiff.
Presumed Undue Influence: -Not similar to actual undue influence, in the case of presumed undue influence, parties do not have a defined relationship but due to the nature of relationship, existence of influence can be assumed. These are the cases where defendant carry deemed relation of influence.
Presumed Undue Influence is further defined in two categories, one is known as first Sub group and another one knows as second sub group. These categories have been made according to the nature of the relationship between the parties.
In the first group, the following relationships include-

   Parent-Child
   Doctor-Patient
   Religious adviser- Members of the flock
   Government- Citizen
   Solicitors- Clients

These cases are those where a relationship exists between the parties that have the nature of influence. In such situations, the burden of proof will be on the party that holds the position of influence, it means in case of any dispute the first party such as a parent, doctor, solicitor and so on will be responsible to prove that they did not use their position in an adverse manner. Further, the second group consists of those relationships of the parties, which does not cover in the first group category. These categories involve the relationship where a factor exists, that can lead the influence.
While discussing the issue of Undue Influence, this is also necessary to study that what are the situations where such Undue Influences exists. It is to state here that whenever a person uses his/her position by changing other party’s decision for the personal benefits then such influence exists. In Contract law, mostly a person does an act of Undue influence where:-
He/she holds a fiduciary relationship with another party in the case.
Where another party in the case is an unsound mind.
The doctrine of Undue Influence deemed to occur in those cases where one party has an emotion of fear, respect, trust, or confidence for other party. In this situation, such other party can misuse his/her position in a transaction and can become defendant of a future case. For instance relationship of a father and child consist, love, respect, and trust.  Further relationship of a doctor and patient consist confidence. As mentioned earlier that apart from the defined relationship, some relationship is also there in that one party can be in a position to perform undue influence over another party of the transaction.
In order to conclude the inquiry titled “what are the circumstances in which undue influence is deemed to occur,” this can be stated that in a situation where one party holds the relationship of trust with others. Further, in cases where one party holds a superior position and for this reason the same can dominate the other party then also it will be treated as undue influence. Although apart from some of the relationships, not all relations are defined, yet to say that circumstances and nature of the relationship are defined in the law, where undue influences will be deemed to exist in cases of Contract Law as well as others.
Ambiguity in the rules of Undue influence
The concept of undue influence is relatively old, and the principles of the same provide a defense to people who are weak and vulnerable by allowing them to set aside a contract or will. However, many experts have argued that the principles of undue influence are not clear which resulted in creating ambiguity in a case, which affects the judgment of the court. It can be seen from various cases that ambiguity exists in the principles of undue influence, which resulted in negatively affecting the innocent party or providing unfair advantages to another. Following are different factors that show that the principles of undue influence are not clear and ambiguity exist in them.
Lack of proper definition
Various provisions exist regarding the doctrine of undue influence, however, in Allcard v Skinner case, Lindley LJ provided that no court has ever attempted to define the doctrine of undue influence. Different definitions and interpretations are made by courts, which are based on the circumstances of the case. The basic principle provides that if parties have entered into a contract based on undue influence, then such contract will be rendered void. Due to lack of a proper definition, courts are required to provide judgment based on the circumstances of the case, which leads to different interpretations. The court has to provide its judgment based on the principle of natural justice which affects the interest of the parties and their right to remedy. For example, in BCCI v Aboody case, it was held by the court that in order to prove actual undue influence, the parties are required to show that the issues which rose in the transaction of the case are to the manifest disadvantage of the ‘innocent party’. However, this principle was overruled by the judgment given by House of Lords in CIBC Mortgages PLC v Pitt case. It was held that it is unnecessary for the victim party to prove in the case of actual undue influence that the transaction was the manifest disadvantage. It shows that ambiguity in the principles that exist due to lack of a proper definition affects the interest of innocent parties.
Similarity with coercion
The doctrine of undue influence is similar to the principle of coercion, which creates confusion for the court while providing remedies to the parties. Due to mistaken of a fact, it becomes difficult for the court to identify whether to implement the principle of coercion or undue influence. Furthermore, it is also confusing for solicitors to understand whether to implement the principles of undue influence or coercion due to lack of proper definition. Porter J provided in Mutual Finance Ltd v John Wetton & Sons Ltd case that a much wider relief is given to the party in case a contract is set aside based on the principle of duress or coercion. The relief of an innocent party is affected if the court failed to identify between coercion and undue influence. Although, many judgments have made the difference between coercion and undue influence more clear, however, ambiguity still exists in their application.
Contradiction between undue influence and professional responsibilities
Due to the lack of proper definition, the line between undue professional responsibilities is very thin which affects many professionals. It is difficult for the court to identify whether the decision the actions of the defendant comes under the definition of professional responsibility or undue influence. On the other hand, many professionals take unfair advantage of their position to influence another party and save themselves from the charges based on professional responsibility principles.
Contradiction between undue influence and love and affection
Similarly, as a professional responsibility, it is difficult to understand the actions, which are performed, based on love and affection. The court finds it difficult to understand the difference between acts under love or affection and undue influence, especially in probate law. For example, if a will is prepared by a party in which he has given all his property to a single beneficiary out of love and affection, then it is difficult for such party to prove this in the case after the death of such person. On the other hand, many people take unfair advantage of a will based on love and affection, which negatively affect an innocent person.
Remedies for damages are not clear
There is no specific remedy or punishment exists in English law regarding undue influence and the court provides remedies to the innocent party based on the circumstances of the case. Due to the lack of proper definition, it becomes difficult for the court to maintain consistency while providing remedies to the parties. It shows that ambiguity exists in the principles of undue influence.
Whether the rules of undue influence provide sufficient protection
Based on the above analysis, it can be seen that the principles of undue influence are not clear and ambiguity exists during their implementation in a particular case. Due to the lack of rigid policies and ambiguous regulations, the rules of undue influence did not provide sufficient protection to the people who are at the risk of being taken advantage of. Many parties take advantage of ambiguity in the principles of undue influence to gain an unfair advantage. Following are different factors, which show how the rule of undue influence is not sufficient to protect the people who are at the risk of being taken advantage of.
Lack of set of rules to prove undue influence
The doctrine of undue influence is an equitable doctrine in which the court intervenes in a case to determine which a person has exerted dominion over another party in order to gain or benefit accruing to the defendant. The approach of ‘actual’ and ‘presumed’ undue influence was given in the leading care of Johnson v Buttress. Both of these approaches have different elements that are required to be fulfilled by the parties in order to claim for remedies. Actual undue influence requires proof that the transaction in which the parties entered is the result of the actual influence exerted. It may include a number of acts such as a threat to end a relationship or continuing badgering a party until they give their content. In case of presumed undue influence, the relationship between the matter of law and the transaction is analyzed by the court in order to determine whether the principles of undue influence applies in the particular case. These definitions are ambiguous which made it difficult for the defendant to prove the principle of undue influence. Due to lack of a rigid set of rules, it is relatively difficult for the court to identify whether the principle of undue influence applies in a particular case.
Lack of remedies available for the defendant
In case of presumed influence, the burden of proof lies on the defendant to disprove the undue influence on the second party. In the case of Tulloch v Braybon (No 2), the court provided that in order to disprove the undue influence, the defendant has to prove that the second party knew and understood what he/she was doing and he/she was acting independently without the influence of the dominant party. However, many times it becomes relatively difficult for the defendant to prove his/her innocence due to lack of evidence or reliable proof. In the case of Watkins v Combes, the court provided that many times the plaintiffs are not genuine and they file the suit of undue influence in order to gain an unfair advantage. In such case, it becomes difficult for the dominant party to prove that he/she is innocence. Furthermore, this problem arises in the case of professional relationship or love and affection as well.
Psychiatric Conditions which affect capacity and vulnerability to undue influence
The law did not take into consideration the common psychiatric conditions of people, which can result in affecting the capacity and vulnerability to undue influence. These conditions adversely affect a person’s ability to understand relevant facts. They also affect people’s appreciation of the consequences of specific actions, and it also affects their ability to interpret the situation-specific factors. For example, dementias such as vascular cognitive impairment, Lewy body dementia, and Alzheimer’s disease have specific characteristics regarding cognitive deficits. However, in many cases, the level of cognitive impairment is relatively subtle or mid which leads to a dispute between the parties. The court did not take into consideration this factor due to which innocent people suffer. Furthermore, psychiatric conditions such as mood disorders, delusions, alcohol, and other factors are not recognized by the court due to which the rules of undue influence do not protect people.
Suggestions
As in the above-mentioned headings, the discussion has been made about the meaning, nature, factors, remedies, and their efficiency related to Undue Influence, this section belongs to the suggestions and recommendation in the concerned area. As mentioned earlier that although many of the remedies are available with the victim party of the case in Contract Law and Probate Law, yet the same is not sufficient in some of the cases, therefore what rules can be made further is defined in the following discussion. Being the solicitor of the Charity, following are the suggested ways to the Board of Management/ Directors of the charity in which rules related to Undue Influence can be improved.

Development of Law-After the aforementioned study of the concerned topic, this is very clear that Undue Influence is a major issue, especially in those cases where money is involved. Neither in Contract Law nor in Probate Law, is a separate set of rule mentioned there to prevent this issue. It has noted that in cases related to the issue, courts give a decision according to the Judicial Precedents or based on natural justice. Development of separate law is the highly required thing to do in this area. Until unless an explained and dedicated law would not be there, prevention of such cases is not possible. Hence, this is recommended that authorities must have developed either separate law or at least a set of rule to protect the interest of the weaker party of the case.
Administrative courts and committee-In order to ensure the prevention of cases related to Undue Influences, a committee must be there to entertain the request of the general public and victim parties to the case. In many of the cases, it has noted that proper justice has not granted in such cases due to their nature. As in these cases, the burden of proof lies on one of the party i.e. on the defendant and for this reason proceedings and the decision of the cases are delayed. It is recommended to establish a separate court to entertain the cases of Undue Influence.
Whistle Blowing Policy- As mentioned in the earlier part that in some of the cases innocent party does not get proper remedy cause of the higher position of the culprit. In such cases, it becomes necessary to provide a platform where other people can make a claim on behalf of the innocent party. It is very well known that Undue influence reported in those cases where one party fails to stand on his/her decision and choices, hence it can assume that the same will not be able to bring any action in against of another party of the case. In such a situation it is necessary to develop a policy, plan or platform with that help, a third party can raise his/her voice on behalf of the weaker party of the case.
Secret Compliant Forum: -As the name implies, these forums would be open for secret complaints. It has noted that sometimes, making a complaint against the party who has influence personality creates a danger for another party. Although this is general in law that the victim party should bring an action to the court against the culprit to the case but cases of Undue Influence are slightly sensitive in nature. In such cases, one party overrule and influence decisions of others and for this reason, it can lead a threat to the innocent party. Therefore, by providing a platform where without revealing the identity of the victim, the same can make a complaint against the defaulting party.

In addition to the previously mentioned points, some more suggestions can also be made in order to improve the available rules and remedies in the area of prevention of Undue Influence. Definition and scope related to the subject must also be defined so that parties of the case as well the authorities would not have any confusion about the applicability of rules. Further, necessary steps should be taken to make the Proceedings of the case fast.   
Conclusion
After the required study of the topic and review the related cases, in conclusion, this can be stated that Undue Influence is a major issue of the society especially in the cases related to Contract Law and Probate Law. This Briefing included the issues, rules and their sufficiency. Further, this paper has enlightened the suggestion for improvement. This is to state here that admitting the fact that there are remedies given under both of the mentioned law, improvement is necessary. Certain groups of society are not aware of the granted remedies, and for this reason, they fail to get the required remedies and damages. By the reason of unawareness of the parties, two major issues generate. One is that the innocent party cannot get proper justice, another one is defaulting party get some more courage to do this civil wrong with other parties. Rules on Undue Influence are not clear as discussed in the previously mentioned point. Further, only preparation and development of Law is not enough in this area, authorities need to ensure the applicability of the same.
Mostly cases of Undue Influence only happen when a transaction takes place between the relative parties; therefore, it is also the duties of the courts to check out the legal validity of the transaction where parties to the case are relatives or close ones of each other. A court should be more aware and focused on the contracts of family arrangements. Many of times, by reviewing the mutual relation of parties, the existence of position of influence can be identified, hence in such cases; the court must check the free consent of the other party. Undue Influence is a significant issue and can cancel the whole object of the contract and will, therefore this is required to develop some more laws in the area, and directors are requested to have a deep look to the provided suggestion in the heading of “Recommendations” of this briefing paper.
Bibliography
Allcard v Skinner (1887) 36 Ch D 145
BCCI v Aboody (1990) 1 QB 923
CIBC Mortgages PLC v Pitt (1994) 1 AC 200
Johnson v Buttress (1936) HCA 41
Mutual Finance Ltd v John Wetton & Sons Ltd (1937) 2 KB 389
Tulloch v Braybon (No 2) (2010) NSWSC 650
Watkins v Combes (1922) HCA 3
Anita B. Undue Influence (Penguin Books, 2016).
Carla S. Why The Testamentary Doctrine Of Undue Influence Should Be Abolished. (2010) Kansas Law Review. 58(2), Page no. 245
Carmelle P et al. The Wills Of Older People: Risk Factors For Undue Influence. (2008) International Psychogeriatrics. 21(01) Page no. 7
Chenoy C. Contractual Free Will: Doctrines Of Economic Duress & Undue Influence (2015) SSRN Electronic Journal.
Emily L et al. Misconceptions About Coercion And Undue Influence: Reflections On The Views Of IRB Members. (2012) Bioethics. 27(9), Pages 500-507
Eric G M. Neuropsychological Assessment Of Testamentary Capacity And Undue Influence: Table 1. (2016) Archives of Clinical Neuropsychology. 31(6), Pages 554-561
James N, Stephen M and Dawn S. Measuring Channel Capacity To Distinguish Undue Influence. (2009) ACM SIGPLAN Notices. 44(8) 
Miler, C A. Elder Abuse and Nursing:What Nurses need to know and Can do (Springer Publishing Company, 2016, Page no. 155)
Robert F. Presumed Undue Influence: The False Partition From Fiduciary Accountability. (2015) SSRN Electronic Journal.
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BusinessDictionary, Undue Influence (2018) < https://www.businessdictionary.com/definition/undue-influence.html>
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