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5 Cards in this Set
- Front
- Back
Actual undue influence: court knows what happened; Williams v Bayley; threat to go to police about forged signatures in return for mortgage was not binding; BCCI v Aboody; shouting a wife unintentionally unduly influenced her so contract was void; CIBC Mortgages v Pitt; undue influence should seen as similar to fraud and proof of improper pressure make the contract void ; Nottidge v Prince; threat of magic was enough to unduly influence |
Presumed undue influence; make an onlooker suspicious; Requires two ingredients; 1: a relationship either recognised (parent & child, religious advisor & disciple, lawyer & client, doctor & patient, trustee & beneficiary) or developed so everyone else; 2: a deal that requires explanation |
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Alcard v Skinner; refusing someone legal advise is unduly influencing them, although she wasn't entitled to the money due to lapse of time; Goldsworthy v Bricknell; elderly farmer sold his farm to neighbour for suspiciously low price yet no undue influence was used; |
Lloyds Bank v Bundy; held unenforceable as father only received advise from banks lawyer who had a conflict of interest; Macklin v Dowsett; surrendering life tenancy required explanation because it was so obviously a bad deal
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Constructive notice: undue influence concerning jointly owned property's |
Barclays Bank v O'Brien; bank unable to repossess house due to misrepresentation made by the husband to the wife; CIBC Mortgages v Pitt; house was able to be repossessed because couple signed papers even though husband lied to the bank for the purpose of the money |
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Royal Bank of Scotland V Etridge; leading case for constructive notice as wife was unduly influenced by husband and so house was unable to be repossessed; |
Set out criteria for future cases; 1: needs to be a jointly owned property; 2: relationship were one side is likely to dominate; 3: couple need to receive detailed independent advise (if not will be voidable); 4: advice must include: nature of the agreement, potential risks, and whether the other partner is able to pay the repayments (if not then voidable) 5: if yes to all then the bank can recover the house |
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If the answer to 1&2 is no then constructive notice doesn't apply |
Answer no to part 2; Chater v Mortgage Agency Services; bank were unable to repossess due to being unaware of mother/son relationship; Hewett v First Plus Financial group; house was unable to be repossessed because information about the husbands affair was unknown; Banco Exterior V Thomas; house was repossessed even though elderly lady was given the advice not to enter the contract |