Undue Influence and the Family Home by Mark Pawlowski, Brown

By Mark Pawlowski, Brown

This publication offers a complete research of the doctrine of undue effect within the context of the family members domestic and completely comprises the new residence of Lords ruling in Royal financial institution of Scotland v Etridge (No 2) (2001). it really is aimed predominantly on the felony practitioner, yet also will act as an invaluable resource of reference for teachers and scholars of agreement, land legislations and fairness and trusts. Emphasis is put on claims introduced by means of spouses (usually the spouse) trying to put aside a cost over the matrimonial homemade in favour of a lending establishment. The position of creditors during this context is additionally tested extensive, as is the half performed by way of the solicitor performing on behalf of the events. except delivering an exposition of the doctrine and its key components, the e-book additionally supplies a broader outlook via interpreting the Commonwealth event (notably in Australia, Canada and New Zealand) and suggesting an underlying notion of unconscionability as governing undue effect claims. there's additionally a separate bankruptcy on treatments, in addition to an appendix containing a few draft pleadings to be used via the criminal practitioner. within the foreword, the Honourable Mr Justice Neuberger writes: 'Pawlowski and Brown are to be congratulated for having produced a booklet ...as entire and undemanding as this quantity. not just have they thought of the influence of the specialists in a transparent and logical method, yet they've got additionally highlighted difficulties that have but to be resolved and questions that have but to be responded ...one of the hallmarks of a great felony book.'

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Lord Clyde considered the twofold (actual and presumed) division ‘illogical’ and simply ‘add[ed] mystery rather than illumination’: para 92. This was because the various categories confused definition with proof. At one level, the use of the term ‘presumption’, as we have seen, refers to a shift in the evidential burden of proof. This evidential presumption, however, falls to be distinguished from the class 2A presumption which arises upon the existence of certain types of relationship where the law presumes, irrebuttably, that one party had influence over the other.

In most cases, of course, the bank will have only limited knowledge of the parties’ circumstances and personal dealings, for example, the nature of the husband’s business, the state of his accounts, the extent of his existing indebtedness (if any) and the degree of his wife’s involvement in the the business. In Banco Exterior Internacional SA v Thomas [1997] 1 All ER 46 (CA), it was emphasised that a bank has no business inquiring into the personal relationships between those with whom it had dealings, or as to their personal motives for wanting to help one another.

The defendant argued that he was entitled to set aside the mortgage directly against the building society as an unconscionable bargain. The Court of Appeal emphasised the distinctions between this case and that of Burch, mentioned above. In this case, there was no undue influence because it was not manifestly disadvantageous to the defendant that he should be able to raise money by way of remortgage so as to benefit his son. There was nothing to suggest actual undue influence by the son. Moreover, the defendant was not accustomed to reposing trust and confidence in his son, so there was no question of presumed undue influence.

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