Undue Influence and Coercion
| Date | 01 October 1939 |
| Published date | 01 October 1939 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00750.x |
| Author | W. H. D. Winder |
THE
MODERN
LAW
REVIEW
VOl.
111
OCTOBER,
I939
No.
2
UNDUE INFLUENCE AND COERCION
QUITY’S terminology has often brought confusion to
common lawyers. Undue influence
is
one instance. The
scope of the doctrine of undue influence has frequently
been misunderstood. In
Mutual
Finance
Ltd.
v.
John
Wetton
6
Sons
Ltd.,l
Porter,
J.,
after pointing out that the right to avoid
a
contract
is
not
at
the present time confined to cases of duress,
remarks that
“it
depends on the much wider relief given on
principles originally evolved in the Chancery Courts under the
name of undue influence.” He goes on to say that “duress
at
common law could only be pleaded where the end arrived at was
achieved by the use of something in the nature of unlawful force
or
the threat of unlawful force against the person of the other
contracting party. Undue influence in the Chancery Courts might
exist where
a
promise was extracted by a threat to prosecute
certain third persons unless the promise were given.
”2
Although the term undue influence has sometimes been used
in
a
very wide sense, even
by
Chancery judges,
its
meaning has
now become fixed and definite.
It
is not comparable to such
a
general principle
as
public policy or fraud in equity but expresses
an independent rule of law. The rule has recently been thus
stated by Scrutton,
L.
J.
:
“In the Court of Equity in case of
a
benefit or contractual advantage obtained from
a
person coming
within certain defined relations, such as the relation of parent and
E
[1g37]
z
K.B.
389.
*
Ibid.,
pp.
394.
395.
98
MODERN
LAW
REVIEW
Oct.,
1939
young child, solicitor and client, religious superior and inferior,
by
the related member of that class, it is enough to prove the
existence of such a relation to throw on the recipient of the
advantage the burden of proving independent advice to the donor
and in other respects justifying the transactions.”* This is not
a
complete statement because the rule of undue influence extends
to other relationships than those to which a special name may
be given. Nevertheless it is confined
to
a
relationship which
necessarily involves influence by one party over another. The
influence of the dominant over the weaker party may be either
properly used or abused. There may be
a
right use as well
as
an abuse of the influence naturally springing from the relation-
ship. Unless the inferior party
is
adequately protected equity
presumes that the influence has been abused. This does not
mean that there is anything similar to duress at common law
or that consent is overborne. The principle is distinct from several
others that at first sight may present an analogy.
1.
Undue
Influence
in
Equity
The rule of undue influence was
first
enunciated with respect
to the relationship of parent and child. Lord Hardwicke appears
to be responsible for the term. In
Morris
v.
Burroughs*
he said:
“As
the parental authority is great, to prevent any undue influ-
ence
it
may have in prejudice of the children, there must, in
all
cases of this kind, be
a
valuable consideration moving from the
father, and an actual benefit accruing to the ~hild.”~ This
is
the
first
instance of the use of the term. In some earlier cases the
power of the parent had been expressed by the word “awe,” as
in
Duke
of
Hamilton
v.
Mohun
where Cowper, L.C., said with
respect to an agreement which was
a
fraud on
a
marriage settle-
ment, “The heir
is
under the awe of his parent in such a case,
and not supposed to act freely.”6 On the other hand in
Blunden
v.
Hester,
with respect to the argument that
a
child was not
sui
juris
because of “the awe he was presumed to have of his parent,’’
Parker,
L.C.,
said,
“I
do not see the argument from the father’s
power over the child to be
of
any weight; for if
it
should ever
appear that this power has been abused a court
of
eq+ty would
certainly set aside the release thus indirectly gained.”’ In other
words, although the child is
a
free agent he may be to some extent
8
Lancashire
Loans
Ltd.
v.
Black.
[I9341
I
K.B.
380, 404.
We are not
concerned with the question whether proof
of
independent advice is invariably
required.
4
(1737).
I
Atk.
398;
West
t.
Hard.
242.
8
I
Atk.
403.
a
(1710).
I
P.
Wms.
118,
121.
7
(1720),
I
P.
Wms.
634, 639.
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