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Good Faith and Fault in Contract Law$
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Jack Beatson and Daniel Friedman

Print publication date: 1997

Print ISBN-13: 9780198265788

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198265788.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2020

On the Nature of Undue Influence

On the Nature of Undue Influence

(p.57) 3 On the Nature of Undue Influence
Good Faith and Fault in Contract Law

Peter Birks

Chin Nyuk Yin

Oxford University Press

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

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