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10 Cards in this Set
- Front
- Back
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Undue Influence |
Where there has been a relationship of trust and confidence that is being abused and misused. If unduly influenced they did not properly consent and goes against foundations of contract law |
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Actual Undue Influence |
Improper pressure or coercion such as unlawful threats. Some cheating, some advantage gained
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Presumed Undue Influence - Class 2A |
Where there is an irrebuttable presumption of influence due to the relationship between the parties (solicitor/client). All that must be proved is existence of the relationship |
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Presumed Undue Influence - Class2B |
Where the party can show that they did in fact repose trust and confidence in the other person (usually in relation to financial affairs). This raises the rebuttable presumption of influence |
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A transaction calling for explanation |
Needs to be something more than a relationship of influence. Has to be something odd about transaction. (A wife guaranteeing her husbands debts, does not call for explanation) |
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When the bank is put on enquiry |
In any case where the relationship between borrower and guarantor is non commercial |
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Steps the bank should take to rebut the presumption |
Independent Advice Check with wife which solicitor she wishes to act for her Solicitors Certificate Communicated directly with guarantor who the solicitor is to inform of risk Communicate to her that she will not be able to dispute once she has signed Told that she can use same solicitor of husband if she wants |
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Steps the solicitor must take to rebut the presumption |
Inform nature of documents and consequences of signing Point out seriousness of risks involved, the liability and amount of lending State that they have choice If wish to proceed whether is happy for solicitor to write to bank confirming her informed consent
Husband should not be present Explanations must be clear and easy to understand |
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Affirmation |
If affirmed the contract later on lose right to undue influence. (Public Trust v Ottow) Also if you take too long (Allcard v Skinner) |
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Relief of Undue Influence |
Contract voidable |
