Zamet v Hyman
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 18 October 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1018-1 |
| Date | 18 October 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J1018-1
The Master of the Rolls (Lord Evershed)
Lord Justice Donovan and
Lord Justice Danckwerts
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Pennycuick
MR MICHAEL STRANDERS, Q.C. and MR MORRIS FINER (instructed by Messrs D.J. Freeman & Co.) appeared as Counsel for the Appellants.
MR HAROLD LICHTMAN, Q.C. and MR JEREMIAH HAHMAN (instructed by Messrs W.R. Bennett & Co.) appeared as Counsel for the Respondents.
: This case is a somewhat distressing one, arising as it does out of what are indeed strictly domestic affairs and involving a family dispute. The substantial question is whether a document executed under seal on the 4th August 1955 by two persons then engaged to be married can now be held to stand. After hearing the careful arguments on both sides, I for my part conclude, as did the learned Judge, that It cannot stand.
I have already said that the two signatories to this document were engaged to be married. They were not voting people's the man was 79 and was himself a widower, his first wife having then died about a year before: the woman was somewhat younger, 71 and she was a widow, her first husband having died several years before. Both had grown up children and I gather grandchildren also. The basis of the attack upon this document, (which In due course I shall, of course, read) is that when regard is had to the relationship then subsisting between the two signatories, the Court must draw the conclusion that the man owed such a duty of candour and, as it is sometimes said, of protection to the woman that the onus is cast upon those who support the document of establishing affirmatively that the woman executed this document not merely understanding its effect but as a result of full, free and Informed thought about it – a phrase which I gratefully take from Mr Harman's argument. There are, therefore, clearly two stages: first, does the premise arise and are the circumstances here such that there was imposed the obligation, which I have already tried to define, upon the man? If the answer to that be affirmative, then have those, the plaintiffs in the action, who seek to support the document proved affirmatively the necessary degree of informed thought on the part of the woman? The learned Judge dealt with the case in that way and I shall follow him.
He first of all considered what under our law is the consequence of the relationship between a man and woman of being engaged to be married. He cited passages from two leading text books, Halsbury's Laws of England, Third Edition, Vol.17 at page 681 and Snell's Principles of Equity, 24th Edition at page 507. Both those citations undoubtedly support the view that the relationship subsisting between a man and a woman engaged to be married is one that does or may give rise to what I have referred to as the obligation of candour and protection. I shall not repeat the citations from those two text books but I will add to them one other citation to which Mr stranders referred us from the 7th Edition of Professor Hanbury's Modern Equity at page 630. I find this passage under the general heading: "Undue influence", after referring to particular categories of relationship such as those subsisting between parent and child, solicitor and client, and the like: "Among other relations in which the presumption has been held to arise are those of physician and patient and of guardian and ward. Curiously enough, It has been held not to arise in the case of husband and wife; but there is good authority for applying it in the case of an engaged couple. It is very strange that for this purpose a girl should be presumed to yield an obedience to her fiance that she ceases to show to him as soon as he becomes her husband. In Huguenin v. Baseley Lord Eldon set aside a voluntary settlement, made by a widow on a clergyman and his family; the clergyman was unable to discharge the onus of proving that the settlement was the free act of the widow, uninfluenced by him" As regards married couples, I think as Mr Justice Maugham indicated in the case of In re ( Lloyds Bank 1931,1 Chancery, p. 289), that the apparent anomaly to which the Professor alludes is in some part at least due to the fact that the Courts do not normally infer or apply the strict legal canons to what passes between husband and wife in the ordinary course of marriage. But the citations to which I have alluded and to which I have made one addition undoubtedly do, I think, establish strong authority for the view that as between an engaged couple this so-called presumption may arise. I use deliberately the word "may" The first case which is cited in Halsbury in support of this so-called presumption of the law is one decided more than 100 years ago in the year 1848, namely, that of Page v. Horne. That was a case in which two engaged persons, having first made a settlement to operate upon their intended marriage, then shortly before the marriage revoked it to the great advantage of the man. But my predecessor, Lord Langdale, said this in the course of his Judgment: "It is true that no influence is proved to have been used; but no one can say what may be the extent of the influence of a man over a woman, whose consent to marriage he has obtained" As I have indicated, the general proposition seems to have been accepted generally as part of our low ever since 1848. Mr Justice Pennyculck made reference to two cases, that of Lovesy v. Smith, which is reported in 15 chancery Division at page 655 and the case of In re Lloyds Bank Limited., to which I have already referred, the case before Mr Justice Maugham. It is, of course, quite plain that the facts of those cases differ considerably, to say the least, from the facts in the present case, more particularly the former. In the case of Lovesy v. Smith the man who was party to the engagement was a solicitor and had been the woman's professional advis-er before the engagement. I repeat that in the later case Mr Justice Maugham threw no doubt upon the validity of the broad proposition I have stated. True, in that case, the two parties to the intended marriage were young, but I agree for my part with what is said here on the respondents' side that there can be no necessary distinction between the case where the parties are young and where the parties are mature or, as here, one might say relatively elderly. Indeed, it may well be that in the case of an engagement between two elderly persons the influence liable to be exercised would be greater, in modern times at any rate, than in the case of young people. I do not, of course, forget that this is 1961 and what might have been said of the position.
Independence, and the like, of women in 1848 would have to be seriously qualified to-day. It may well be in some cases that the Court would rightly draw the inference of a fiduciary relationship not existing in the man towards the woman but in the woman towards the man. But taking, I hope, a sensible view of the position of women in modern society, I cannot be persuaded that this Court ought now to say that these principles, illustrated in the cases I have mentioned, have ceased altogether to be part of our law. I say only that in modern conditions, at any rate, you should not necessarily assume the existence of such influence in every case. I would put It somewhat thus: that in any transaction of the kind of a deed of arrangement or settlement (and I make that qualification bearing in mind What Mr Stranders put to us of the case of a young man who may be persuaded to give an extravagant engagement ring to his fiancee) made between an engaged couple which upon its face appears much more favourable to one party than the other, then in the circumstances of the case the Court may find a fiduciary relationship of the nature I have mentioned so as to cast an onus on the party benefited of proving that the transaction was completed by the other party only after full, free and informed thought about it. I take that to be the general proposition of law which should be applied In this case. I do not attempt any further statement of the law, but where the circumstances justify It, then I think it does follow that we have to ask the classic question (or a question analogous to It) which, in Huguenin v. Baseley, Lord Eldon did ask: "The question is not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced: whether all that care and providence was placed round her, as against those who advised her, which, from their situation and relation with respect to her, they were bound to exert on her behalf"
If that is the right principle of law, than I turn to the circumstances of this case. And I am bound to say they lead me unhesitatingly to conclude here that there was such a relationship as invoked an answer to Lord Eldon's question so as to impose upon those who assert the validity of this document, the onus of proving the necessary thought and information. The document itself is in this form: "An agreement made this 4th day of August 1955" (and I insert, that is three days before the marriage) "between Morris Zamet (hereinafter called 'Mr Zamet') of the one part and Bluma Shonberg (hereinafter called 'Mrs Shonberg') of the other part. Whereas: (1)The parties hereto have both been previously married and each of them widowed by the loss of their respective spouses. (2) The parties are desirous of marrying with each other. (3) The parties hereto have by their first marriages children and grandchildren living and both appreciate their obligations in this respect. Mow this deed witnesseth as follows: (1) Mrs Shonberg hereby relinquishes allrights that she may have under the law at present in existence...
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...in a position to appreciate what was involved and acted as he did of his own free will, free from the influence of the alleged wrongdoer: Zamet v Hyman [1961] 1 WLR 1442 @ 1454 ii) The Grand Court recently gave considered thought to the question of ‘How can the presumption be rebutted?’ in......
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...in a position to appreciate what was involved and acted as he did of his own free will, free from the influence of the alleged wrongdoer: Zamet v Hyman [1961] 1 WLR 1442 @ 1454 ii) The Grand Court recently gave considered thought to the question of ‘How can the presumption be rebutted?’ in......
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Subject Index
...270–3Y and K (Children), Re, 7 April 2003,unreported, CA ............................ 206Zamet v Hyman [1961] 1 WLR 1442........................................................ 225 298 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOFINDEXESTTTTTABLEABLEABLEABLEABLE OFOFOFOFOF L L L L LEGISLEGI......
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The Emotional Dynamics of Consent
...especially in the emotionally chargedcontext of intimate sexual relations. This is a matter to which we shall return.2514. Zamet vHyman [1961] 1 WLR 1442 at 1444 (Lord Evershed).15. Thus according to Lord Goff a doctor may administer treatment to an unconscious patient in an emergency on th......