File Download
 
 
Supplementary

Conference Paper: Multiple influences: courting culture in the doctrine of Undue Influence
  • Basic View
  • Metadata View
  • XML View
TitleMultiple influences: courting culture in the doctrine of Undue Influence
 
AuthorsKapai, P
 
KeywordsUndue influence
Cultural values
Vitiating factors
Consent-based theory
Wrongdoing
 
Issue Date2010
 
PublisherSocial Science Electronic Publishing, Inc. The Journal's web site is located at http://www.ssrn.com/
 
CitationThe Reciprocity in Contract, Hochelaga Lectures, Faculty of Law, University of Hong Kong, 2009. In Social Science Research Network (SSRN), Abstract no. 1701638 [How to Cite?]
 
AbstractContract law is generally concerned with the regulation of contractual relations. As with all law, contract law theory has developed around and is continuously informed by societal norms and values. Over the years, it has drawn on theories relating to individual autonomy and on societal understandings of acceptable and unacceptable conduct in commercial and non-commercial contexts. In some instances, public policy arguments are advanced to decline the enforcement of certain types of contracts or contractual terms or to hold some people to higher standards of performance than others. One such circumstance is the development of the doctrine of undue influence. Undue influence is an equitable doctrine, which, upon proof of certain elements has the effect of releasing the party subject to the influence, from its obligations under a contract. It is an equitable doctrine because it rescues the party ‘wronged’ from the transaction although at common law, the contract has met all the requisite formalities to be enforceable. The doctrine concerns itself with transactions that have been procured improperly either by overt pressure or transactions involving parties who share a relationship of trust and confidence, where one party depends on the other party and this trust and confidence is abused to secure benefits either for the dominant party or some other third party, usually to the detriment of the submissive party to the relationship. Various theories have been advanced discussing the rationale underlying this doctrine which mostly draw on the circumstances surrounding the entry into the contract. For example, a consent-based theory of contract or evidence of wrongdoing which vitiates the transaction concerned. This paper examines the role of culture and cultural forces in the application of the doctrine of undue influence. Through an analysis of the elements that enable a party to invoke undue influence to render a contract voidable in a typical case, this paper (a) discusses whether the presence of a specific cultural context or religious attachments to a higher order leads to different results in the application of the doctrine of undue influence; and (b) questions whether the doctrine of undue influence has room to account for the role that cultural context and/or religious beliefs play in the decision of a party to a contract and the impact of these considerations on the doctrine. The paper argues that this class of persons operating from within a framework of specific norms imposed by their cultural or religious belief systems raises a particular challenge for the doctrine to the extent that the doctrine is underscored by the consent-based theory of contract or the requirement of impropriety on the part of the party who procured entry into contract. It further argues that the doctrine is unable to fully account for these factors, leaving such parties ill-equipped to challenge the transaction. In conclusion, the paper sets out some of the considerations that need to be accounted for in these contexts to ensure better alignment between the original objectives of the doctrine and its current applications by the courts.
 
DescriptionInvited lectures
 
DC FieldValue
dc.contributor.authorKapai, P
 
dc.date.accessioned2010-10-31T10:22:06Z
 
dc.date.available2010-10-31T10:22:06Z
 
dc.date.issued2010
 
dc.description.abstractContract law is generally concerned with the regulation of contractual relations. As with all law, contract law theory has developed around and is continuously informed by societal norms and values. Over the years, it has drawn on theories relating to individual autonomy and on societal understandings of acceptable and unacceptable conduct in commercial and non-commercial contexts. In some instances, public policy arguments are advanced to decline the enforcement of certain types of contracts or contractual terms or to hold some people to higher standards of performance than others. One such circumstance is the development of the doctrine of undue influence. Undue influence is an equitable doctrine, which, upon proof of certain elements has the effect of releasing the party subject to the influence, from its obligations under a contract. It is an equitable doctrine because it rescues the party ‘wronged’ from the transaction although at common law, the contract has met all the requisite formalities to be enforceable. The doctrine concerns itself with transactions that have been procured improperly either by overt pressure or transactions involving parties who share a relationship of trust and confidence, where one party depends on the other party and this trust and confidence is abused to secure benefits either for the dominant party or some other third party, usually to the detriment of the submissive party to the relationship. Various theories have been advanced discussing the rationale underlying this doctrine which mostly draw on the circumstances surrounding the entry into the contract. For example, a consent-based theory of contract or evidence of wrongdoing which vitiates the transaction concerned. This paper examines the role of culture and cultural forces in the application of the doctrine of undue influence. Through an analysis of the elements that enable a party to invoke undue influence to render a contract voidable in a typical case, this paper (a) discusses whether the presence of a specific cultural context or religious attachments to a higher order leads to different results in the application of the doctrine of undue influence; and (b) questions whether the doctrine of undue influence has room to account for the role that cultural context and/or religious beliefs play in the decision of a party to a contract and the impact of these considerations on the doctrine. The paper argues that this class of persons operating from within a framework of specific norms imposed by their cultural or religious belief systems raises a particular challenge for the doctrine to the extent that the doctrine is underscored by the consent-based theory of contract or the requirement of impropriety on the part of the party who procured entry into contract. It further argues that the doctrine is unable to fully account for these factors, leaving such parties ill-equipped to challenge the transaction. In conclusion, the paper sets out some of the considerations that need to be accounted for in these contexts to ensure better alignment between the original objectives of the doctrine and its current applications by the courts.
 
dc.description.naturelink_to_OA_fulltext
 
dc.descriptionInvited lectures
 
dc.description.otherThe Reciprocity in Contract, Hochelaga Lectures, Faculty of Law, University of Hong Kong, 2009. In Social Science Research Network (SSRN), Abstract no. 1701638
 
dc.identifier.citationThe Reciprocity in Contract, Hochelaga Lectures, Faculty of Law, University of Hong Kong, 2009. In Social Science Research Network (SSRN), Abstract no. 1701638 [How to Cite?]
 
dc.identifier.hkuros179496
 
dc.identifier.urihttp://hdl.handle.net/10722/124232
 
dc.languageeng
 
dc.publisherSocial Science Electronic Publishing, Inc. The Journal's web site is located at http://www.ssrn.com/
 
dc.relation.ispartofSocial Science Research Network (SSRN)
 
dc.rights© 2011 Social Science Electronic Publishing, Inc. All Rights Reserved. For personal & noncommercial use apply only to specific documents and use of specific SSRN-provided statistics and other information.
 
dc.subjectUndue influence
 
dc.subjectCultural values
 
dc.subjectVitiating factors
 
dc.subjectConsent-based theory
 
dc.subjectWrongdoing
 
dc.titleMultiple influences: courting culture in the doctrine of Undue Influence
 
dc.typeConference_Paper
 
<?xml encoding="utf-8" version="1.0"?>
<item><contributor.author>Kapai, P</contributor.author>
<date.accessioned>2010-10-31T10:22:06Z</date.accessioned>
<date.available>2010-10-31T10:22:06Z</date.available>
<date.issued>2010</date.issued>
<identifier.citation>The Reciprocity in Contract, Hochelaga Lectures, Faculty of Law, University of Hong Kong, 2009. In Social Science Research Network (SSRN), Abstract no. 1701638</identifier.citation>
<identifier.uri>http://hdl.handle.net/10722/124232</identifier.uri>
<description>Invited lectures</description>
<description.abstract>Contract law is generally concerned with the regulation of contractual relations. As with all law, contract law theory has developed around and is continuously informed by societal norms and values. Over the years, it has drawn on theories relating to individual autonomy and on societal understandings of acceptable and unacceptable conduct in commercial and non-commercial contexts. In some instances, public policy arguments are advanced to decline the enforcement of certain types of contracts or contractual terms or to hold some people to higher standards of performance than others. One such circumstance is the development of the doctrine of undue influence. Undue influence is an equitable doctrine, which, upon proof of certain elements has the effect of releasing the party subject to the influence, from its obligations under a contract. It is an equitable doctrine because it rescues the party &#8216;wronged&#8217; from the transaction although at common law, the contract has met all the requisite formalities to be enforceable. The doctrine concerns itself with transactions that have been procured improperly either by overt pressure or transactions involving parties who share a relationship of trust and confidence, where one party depends on the other party and this trust and confidence is abused to secure benefits either for the dominant party or some other third party, usually to the detriment of the submissive party to the relationship. 
Various theories have been advanced discussing the rationale underlying this doctrine which mostly draw on the circumstances surrounding the entry into the contract. For example, a consent-based theory of contract or evidence of wrongdoing which vitiates the transaction concerned. This paper examines the role of culture and cultural forces in the application of the doctrine of undue influence. Through an analysis of the elements that enable a party to invoke undue influence to render a contract voidable in a typical case, this paper (a) discusses whether the presence of a specific cultural context or religious attachments to a higher order leads to different results in the application of the doctrine of undue influence; and (b) questions whether the doctrine of undue influence has room to account for the role that cultural context and/or religious beliefs play in the decision of a party to a contract and the impact of these considerations on the doctrine. The paper argues that this class of persons operating from within a framework of specific norms imposed by their cultural or religious belief systems raises a particular challenge for the doctrine to the extent that the doctrine is underscored by the consent-based theory of contract or the requirement of impropriety on the part of the party who procured entry into contract. It further argues that the doctrine is unable to fully account for these factors, leaving such parties ill-equipped to challenge the transaction. In conclusion, the paper sets out some of the considerations that need to be accounted for in these contexts to ensure better alignment between the original objectives of the doctrine and its current applications by the courts.</description.abstract>
<language>eng</language>
<publisher>Social Science Electronic Publishing, Inc. The Journal&apos;s web site is located at http://www.ssrn.com/</publisher>
<relation.ispartof>Social Science Research Network (SSRN)</relation.ispartof>
<rights>&#169; 2011 Social Science Electronic Publishing, Inc. All Rights Reserved.  For personal &amp; noncommercial use apply only to specific documents and use of specific SSRN-provided statistics and other information.</rights>
<subject>Undue influence</subject>
<subject>Cultural values</subject>
<subject>Vitiating factors</subject>
<subject>Consent-based theory</subject>
<subject>Wrongdoing</subject>
<title>Multiple influences: courting culture in the doctrine of Undue Influence</title>
<type>Conference_Paper</type>
<description.nature>link_to_OA_fulltext</description.nature>
<identifier.hkuros>179496</identifier.hkuros>
<description.other>The Reciprocity in Contract, Hochelaga Lectures, Faculty of Law, University of Hong Kong, 2009. In Social Science Research Network (SSRN), Abstract no. 1701638</description.other>
<bitstream.url>http://hub.hku.hk/bitstream/10722/124232/1/re01.htm</bitstream.url>
</item>