Duress, Undue Influence and Unconscionable Dealing, 4th Edition by Professor Nelson Enonchong | 2023


Duress, Undue Influence and Unconscionable Dealing, 4th Edition by Professor Nelson Enonchong | 2023

Author Professor Nelson Enonchong
Publication Date 30 Apr 2023
ISBN 9780414110557
Practice Area Commercial Law, Contract Law
Publisher Sweet & Maxwell


Description of Duress, Undue Influence and Unconscionable Dealing, 4th Edition:

Duress, Undue, Influence and Unconscionable Dealing are grounds on which a contract may be thrown out because the claimant was coerced into signing it via illegal means. Professor Enonchong offers a thorough and exact analysis of the situations in which a transaction that would otherwise be legal can be rejected on each of these grounds.

Duress is a common law notion that allows a contract to be broken when the complaint entered into it under dubious circumstances, such as the threat of physical harm, the threat to take or destroy property, or financial pressure.

Undue Influence
There are two doctrines of undue influence: the equitable doctrine and the probate doctrine. The equitable doctrine pertains to lifelong transactions (like contracts), whereas the probate doctrine pertains to wills. The equitable doctrine of undue influence pertains to situations where one individual has acquired power over another and abuses that power to persuade the subordinate to engage in a lifelong transaction. In some circumstances, it contains an evidence presumption of improper influence. In relation to wills, probate undue influence is applicable. In cases where the testator was persuaded to sign the will through the use of undue influence, the court may refuse to accept the will to probate. Contrary to equitable undue influence, there is no evidence presumption of undue influence in probate undue influence.

Abuse of Confidence

The equitable doctrine of abuse of confidence, which is commonly mistaken for but differs from the equitable doctrine of undue influence, is also covered in the book. The theory of abuse of confidence is concerned with defending a person (the principal) who has put their trust in another person (the fiduciary) against misuse of that trust in any transaction between the fiduciary and the principal (such as when a lawyer purchases property from a client).

Unconscionable dealing
Unconscionable dealing or unconscionable bargaining is an equitable principle that, in some circumstances, protects the weaker parties. When one party entered into a contract while experiencing a severe disadvantage, such as poverty, ignorance, illness, or another condition that allowed for the taking of unfair advantage, the other party (the "stronger party") exploited that weakness in a morally repugnant way, and the resulting transaction is overwhelmingly in the stronger party's favor, the court will step in on this basis to annul the contract.

Features of Duress, Undue Influence and Unconscionable Dealing, 4th Edition :

  • extensive information on all facets of coercion, undue influence, unethical behavior, and abuse of trust.
  • aids you in resolving issues brought on by a variety of contractual disagreements.
  • provides a description of the potential remedies and defenses in the context of the theories explored in this work.
  • examines the various forms of coercion, such as duress to persons, economic duress, and duress to property.
  • discusses current events and court rulings pertaining to undue influence, including Commonwealth cases and pertinent Supreme Court and Court of Appeal decisions.
  • includes a comparison of the methods used in Australia, Canada, Hong Kong, Ireland, New Zealand, Scotland, and Singapore with those used in other countries.
  • gives illustrations of how incidents involving duress, undue influence, abuse of confidence, and unethical trading actually play out in real life.
  • The loan to a corporation provides a critical assessment of the situations where the bank may not be put on inquiry in the context of third party undue influence or deception.
  • walks you through the specific actions that a bank under investigation must do to prevent being corrected with constructive notice.

New in this 4th Edition of Duress, Undue Influence and Unconscionable Dealing, 4th Edition:

  • Chapter 3 has undergone considerable revision to reflect the Supreme Court's authoritative interpretation of law on authorized act duress in Times Travel (UK) Ltd v Pakistan International Airways Corp (2021);
  • Additionally, Chapter 4 has undergone considerable revisions to reflect changes in the case law.

Many fresh examples have been taken into account, including:

  • KSH Farm Ltd v KSH Plant Ltd [2021] EWHC 1986 (Ch) (causation for economic duress)
  • Al Saif Group v Cable [2022] EWHC 271 (QB) at [199] and [202] (lawful act duress – exploitation of knowledge of criminal activity)
  • Al-Subaihi v Al-Sanea [2021] EWHC 2609 (Comm) (lawful act duress - threat to institute civil proceedings that can lead to travel ban and/or asset freezing)
  • Morley v Royal Bank of Scotland Plc [2021] EWCA Civ 338 (duress – causation – where complainant negotiated a better deal after defendant’s threats)
  • Instagroup Ltd v Carroll [2022] EWHC 464 (QB) (duress – causation)
  • Bird v Lantern Recovery LLP [2021] EWHC 1379 (Ch) (presumption of undue influence – whether a transaction between mother and son was one that called for explanation)
  • Wood v Commercial First Business Ltd [2019] EWHC 2205 (Ch) (Whether the court needs to be satisfied that there has been wrongdoing or improper conduct before making a finding of undue influence)

Table of Contents of Duress, Undue Influence and Unconscionable Dealing, 4th Edition

  • 1 General Introduction
  • 2 The Nature of Duress
  • 3 Is the Pressure Illegitimate?
  • 4 Causation and Absence of Reasonable Alternative
  • 5 Types of Duress
  • 6 Introduction to Part II
  • 7 Equitable Undue Influence
  • 8 Actual Undue Influence
  • 9 Presumed Undue Influence
  • 10 Presumed Undue Influence: A Relationship of Influence
  • 11 Presumed Undue Influence: A Transaction that calls for Explanation
  • 12 Rebutting the Presumption of Undue Influence
  • 13 Undue Influence in Probate Law
  • 14 Abuse of Confidence
  • 15 Introduction to Part III
  • 16 Was the Claimant at a serious Disadvantage?
  • 17 Is the Defendant’s Conduct Unconscionable?
  • 18 Is the Transaction Overreaching and Oppressive?
  • 19 Independent Advice
  • 20 Scope of Unconscionable Dealing
  • 21 Introduction to Part IV
  • 22 The Doctrine of Agency
  • 23 Actual and Constructive Notice
  • 24 Constructive Notice: When is a Party Put on Inquiry?
  • 25 Steps to be Taken by a Creditor Put on Inquiry
  • 26 Comparison with Equivalent Doctrines in Australia and Scotland
  • 27 Introduction to Part V; 
  • 28 Remedies
  • 29 Equitable Defences.

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