Restitution Discussion Group Archives
| Sender: |
Robert Stevens |
| Date: |
Fri, 2 Apr 2004 09:42:26 +0100 |
| Re: |
Undue Influence |
I don't think I agree with some of the points made in
Professor Neyers last post.
In order to show that the enrichment
is unjust, one must then attack the underlying contract or gift which
requires some sort of fault (duress, breach of fiduciary duty, etc.)
or the implicit objective agreement of the parties that it is not to
bind in certain circumstances (conditional gift, fundamental mistake
in assumptions, etc.). If UI is not about fault then how does it upset
the underlying contract or gift so that UE can operate? I don't think this can be correct. One party's innocent
misrepresentation entitles the other party to rescind a contract. No fault
is required; rescission is not based upon an implied agreement that the
contract it is capable of being rescinded. I also doubt whether duress
necessarily implies fault (eg The Atlantic Baron [1979] QB 705). A breach
of fiduciary duty may also be wholly innocent (eg Boardman v Phipps [1967]
2 AC 407) and is always a wrong although duress and undue influence are
probably not.
It may be that, like misrepresentation, undue influence
can be a wrong (i.e. a breach of duty) which gives rise to a claim for
damages where it is applied fraudulently (cf duress) or even possibly
negligently (cf Hedley Byrne). When the undue influence with the counter
party arises wholly innocently I doubt whether it is a wrong but it does
entitle the dependent party to rescind (cf Allcard v Skinner (1887) 36
ChD 145 with Redgrave v Hurd (1881) 20 ChD 1).
RS
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