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Conference Paper: Multiple influences: courting culture in the doctrine of Undue Influence

TitleMultiple influences: courting culture in the doctrine of Undue Influence
Authors
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/
Citation
The 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?
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 ‘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
Persistent Identifierhttp://hdl.handle.net/10722/124232

 

DC FieldValueLanguage
dc.contributor.authorKapai, Pen_HK
dc.date.accessioned2010-10-31T10:22:06Z-
dc.date.available2010-10-31T10:22:06Z-
dc.date.issued2010en_HK
dc.identifier.citationThe Reciprocity in Contract, Hochelaga Lectures, Faculty of Law, University of Hong Kong, 2009. In Social Science Research Network (SSRN), Abstract no. 1701638en_HK
dc.identifier.urihttp://hdl.handle.net/10722/124232-
dc.descriptionInvited lectures-
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.languageengen_HK
dc.publisherSocial Science Electronic Publishing, Inc. The Journal's web site is located at http://www.ssrn.com/en_HK
dc.relation.ispartofSocial Science Research Network (SSRN)en_HK
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 Influenceen_HK
dc.typeConference_Paperen_HK
dc.identifier.emailKapai, P: puja@hku.hken_HK
dc.description.naturelink_to_OA_fulltext-
dc.identifier.hkuros179496en_HK
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-

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