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• ° , _ y 1- • ,^ 1 influence

to exist as a natural consequence of the condition oi the presumed

parties, though it be not actually proved that the one ^'^^'^.
'- _ " . . certain

habitually acted as if under the domination of the other, relatione.
There are many relations of common occurrence in life
from which " the Court presumes confidence put " in the
general course of affairs "and influence exerted" in the
particular transaction complained of (x).

Persons may therefore not only be proved by direct
evidence of conduct, but presumed by reason of standing
in any of these suspected relations, as they may be called,
to be in a position of commanding influence over those
from whom they take a benefit. In either case they are
called upon to rebut the presumption that the particular
benefit was procured by the exertion of that influence, and
was not given with due freedom and deliberation. They
must " take upon themselves the whole proof that the
thing is righteous " (y). A stringent rule of evidence is

(?0 Cp. per Lindley L.J. 36 Cb. see note (k), p. 560, infra.
Div. at p. 183. {x) Per Lord Kingsdown, Smith

(r) In Boyse v. Rosshorough v. Kay (1859) 7 H. L. C. 750, 779.
(1856-7) 6 H. L. C, at p. 48, it is (y) Gibson v. Jeyes (1801) 6 Ves.

said that, taking the words in a 266, 276. The like burden of proof

wide sense, all undue influence may is cast upon those who take any

be resolved into coercion and fraud: benefit under a will which they

but the case there considered is have themselves been instrumental

that of a will, in which undue in- in preparing or obtaining : Fulton

fluence has a more restricted mean- v. Atulreiv (1875) L. R. 7 H. L. 448,

ing than in transactions inter vivos : 472, 44 L. J. P. 17.


imposed as a safeguard against evasions of the substantive

" Wherever two persons stand in such a relation that, while it con-
tinues, confidence is necessarily reposed by one, and the influence which
naturally grows out of that confidence is possessed by the other, and this
confidence is abused, or the influence is exerted to obtain an advantage
at the expense of the confiding party, the person so availing himself of
his position will not be permitted to retain the advantage, although the
transaction could not have been impeached if no such confidential relation
had existed " (z).

" Nothing can be more important to maintain than the
jurisdiction, long asserted and upheld by the Court, in
watching over and protecting those who are placed in a
situation to require protection as against acts of those who
have influence over them, by which acts the person having
such influence obtains any benefit to himself In such
cases the Court has always regarded the transaction with
jealousy " (a) — a jealousy almost invincible, in Lord
Eldon's words (6).

" In equity persons standing in certain relations to one another, such as
parent and child (c), man and wife {d), doctor and patient (c), attorney and
client (/), confessor and penitent, guardian and ward {ff), are subject to

(2) Per Lord Chelmsford, Tate v. as to persons living together as

Williamson (1866) 2 Ch. 55, 61. man and wife though not lawfully

(a) Lord Hatherley, Turner v. married. In all these cases the

Collins (1871) 7 Ch. 329, 338. b\uden of proof was held to be on

(6) ^a<c/t V. ZfaicA, 9 Ves. at p. 296. the man (as holding under such

(c) Archer v. Hudson (1844) 7 circumstances a position of In-

Beav. 551, 13 L. J. Ch. 380; Turner fluence) to support the transaction.

V. Collins (1871) 7 Ch. 329, 41 L. J. It m-iy not be so however in a case

Ch. 558. of mere illicit intercourse : see

(rf) Lord Hardwicke's remarks in Farmer v. Farmer (1848) 1 H. L.

Crighy v. Cox (1750) 1 Ves. .sen. 517 C. 724, 752.

(though nut the decision, for it was (e) Dent v. Bennett (1839) 4 My.

not a gift but a purchase, and ap- & Cr. 269; Ahearne v. Hogan {I8ii)

parently there was no evidence to Dru. 310 ; s. v. Blackie v. Clark

bear out the charge of collusion), (1852) 15 Beav. at p. 603.
and the decision in Nedby v. Nedbii (/) Gibson v. Jeyes (1801) 6 Ves.

(1852) 5 De G. & Sm. 377, seem 266; Holman v. Loynes {l^bi) iT).

contra ; but see Cobbett v. Brock M. G. 270, 23 L. J. Ch. 529 ;

(1855) 20 Beav. 524; Page v. Horne Gresley v. Mousley (1861) 4 De G.

(1846-8) 11 Beav. 227; showing & J. 78, 94.

that there is a fiduciary relation (g) Hatch v. Hatch (1804) 9 Ves.

between persons engaged to be 297 ; Maitland v. Irving (1846) 15

married ; and Coulson v. Allison Sim, 437,
(1860) 2 D. F. J. 521, 524, the like


certain presumptions when transactions between them are brought in
question ; and if a gift or contract made in favour of him who holds the
position of influence is impeached by him who is subject to that influence,
the courts of equity cast upon the former the burthen of pro\'ing that the
transaction was fairly conducted as if between strangers, that the weaker
was not unduly impressed by the natural influence of the stronger, or the
inexperienced overreached by him of more mature intelligence " (h).

This and all similar specifications are merely illustra-
tive — " As no Court has ever attempted to define fraud, so
no Court has ever attempted to define undue influence,
which includes one of its many varieties " (i). The cases
in which this jurisdiction has been actually exercised are
considered as merely instances of the application of a
principle " applying to all the variety of relations in which
dominion may be exercised by one person over another" (k).
As to certain well-known relations, indeed, the Court is
now bound by authority to presume influence. As to
any other relation which the Court judges to be of a con-
fidential kind it is free to presume that an influence
founded on the confidence exists, or to require such proof
thereof as it may think fit.

(h) Per Lord Penzance, Parfitt v. Phosphate Co. (1877) 3 App. Ca. at

Lmvless (1872) L. R. 2 P. & D. 462, p. 1230. But is not personal con-

468, 41 L. J. P. 68. It is to be fidence essential to make the present

noted that this does not apply to doctrine applicable ? And has any

wills, as to which undue influence is case gone the length of casting on a

never presumed : ib. ; Boyse v. Ros%- promoter the burden of proving in

horovgh (1856-7) 6 H. L. C. 2, 49 ; the first instance that a contract

Hindson v. WeatheriU. (1854) 5 D. between him and the company was

M. G. 301, 311, 313 : though a dis- a fair one?

position by will may be set aside as (?) Lindley L. J. in Allcard v.

well as an act inter vivos when un- Skinner (1887) 36 Ch. Div. at p. 183.
due influence is actually proved: but (A) Sir S. Romilly, org. Huguenin

then, it s-emp, the influence must be v. Basehy (1807) 14 Ves. 285,

such as to " overpower the volition adopted by Lord Cottenham, Dent

without convincing the judgment :" \. Bennett {\iZ^) A M.y. & Cr. 269,

Hall V. Hall (1868) L. E. 1 P. & D. 277 ; Billage v. Southee (1852) 9 Ha.

482, 37 L. J. P. 40. See Walker v. 534,540. Cp.D'Aguesseau((Euvres,

Smith (1861) 29 Beav. 394, where 1. 299) " Parceque la rais-n de

between the same parties gifts by I'ordonnance est g^n^rale, et qu'elle

will were supported and a gift inter comprend ^galement tons ceux qui

vivos set aside. Lord Penzance has peuvent avoir quelque empire sur

added to the list of suspected rela- I'esprit des donateurs, vos arrets en

tions that of promoters of a company ont t^tendu la disposition aux maitres,

to the company which is their aux mddecins, aux confesseurs."
creature : Erlanger v. New Sombrero



Burden of
where no

rules and
on special

It has even been said (l) that in every case where " one
person obtains, by vohmtary donation, a large pecuniary
benefit from another," the person taking the benefit is
bound to show "that the donor voluntarily and deliberately
performed the act, knowing its nature and effect ; " that
for this purpose a voluntary donation means any trans-
action in which one person confers a large pecuniary
benefit on another, though it may be in form a contract (m);
and that such is the rule whether there is any confidential
relation or not. But these dicta, though not expressly
contradicted in any reported case, are certainly not law.
There is no general presumption against the validity of
gifts as such (n). Where grounds of unfavourable pre-
sumption exist, it is easier to set aside a mere gift than a
transaction from which the plaintiff has derived some
benefit, though not adequate to what was given for it; and
attempts to disguise a gift as a dealing for value are
almost always fatal. Beyond this, it is conceived, the law
does not go.

In the absence of any special relation from which in-
fluence is presumed, the burden of proof is on the person
impeaching the transaction (o), and he must show affir-
matively that pressure or undue influence was employed.

Having thus stated the fundamental rules, we may pro-
ceed to say something more of —

(1) The auxiliary rules applied by courts of equity to
voluntary gifts in general :

(2) The like as to the influence presumed from special
relations, and the evidence required in order to rebut such
presumption :

{I) By Lord Romilly in Cooke v.
Lamotte (1851) 15 Beav. 234, 240,
21 L. J. Ch. 371, and Horjhton v.
Hoghton (1852) 15 Beav. 275, 298,
Cp. per Lord Hatherley in Phillips
V. MulUngs (1871) 7 Ch. 244, 246,
41 L. J. Ch. 211.

(»i) E. y. Cooke v. Lamotte (1851)
15 Beav. 234, 21 L. J. Ch. 371 ;
Dent V. Bennett (1839) 4 My. & Cr.

269, 273.

(w) If there were, the elaborate
discussion which took place e. g. in
Allcard v. Skinner, 36 Ch. Div. 145,
would have been superfluous.

(o) Blackie v. Clark (1852) 15
Beav. 595 ; Toker v. Toker (1863)
31 Beav. 629, 3 D. J. S. 487, 32 L.
J. Ch. 322.


(3) What are the continuing relations between the
parties from which influence has been presumed :

(4) From what circumstances, apart from any continuing
relation, undue influence has been inferred : and herein of
the doctrine of equity as to sales at an undervalue and
" catching bargains " :

(5) The limits of the right of rescission.

1. As to voluntary dispositions in general. (Cp. Da v. Voluntary
Conv. 3. pt. 1. Appx. No. 4.) tionsgene-

A voluntary settlement which deprives the settler of the '"^^^y-
immediate control of the property dealt with, though it be
made not for the benefit of any particular donee, but for
the benefit of the settlor's children or family generally, and
free from any suspicion of unfair motive, is not in a much
better position than an absolute and immediate gift. It
seems indeed doubtful whether the Court does not consider
it improvident to make in general indefinite contemplation
of marriage the same kind of settlement which in contem-
plation and consideration of a definitely intended marriage
it is thought improvident not to make {/)).

It is conceived that the ground on which such disposi-
tions are readily set aside at the instance of the settlor's
representatives is not the imprudence of the thing alone,
but an inference from that, coupled with other circum-
stances — such as the age, sex, and capacity of the settlor —
that the effect of the act was not really considered and
understood at the time when it was done (g).

The absence of a power of revocation has often been As to
insisted upon as a mark of improvidence in a voluntary ^g^ca-**^
settlement ; and it has been even held to be in itself an tion.

{p) Everittv.EveriU (1870) 10 Eq. Div. at p. 281, 52 L. J. Ch. 661;

405, 39 L. J. Ch. 777; but here James v. Couchman (1885) 29 Ch-B.

some of the usual [ rovisions were 212. So common ignorance or mis-

omittfcd. take of both parties as to the effect

(q) lb. ; Prideaux v. Lonsdale of an instrument may sometimes be

(1863) 1 D. J. S. 433 : this ground inferred on the face of it from its

is strongly taken by Jessel M. R. in unreasonable or unusual character :

Dutton V. Thompson (1883) 23 Ch. see p. 481, supra.



almost fatal objection: but the doctrine now settled by the
Court of Appeal is that it is not conclusive, but is only to
be taken into account as matter of evidence, and is of more
or less weight according to the other circumstances of each
case (r).

It was a rule of Chancery practice that a voluntary
settlement could not be set aside at the suit of a de-
fendant. The person impeaching it had to do so by a
substantive proceeding in either an original or a cross
suit (s). Under the new practice he will proceed by
counter-claim if sued on the deed.


Age, &c.
not ma-

to con-

2. Auxiliary rules as to the influence presumed from
special relations.

The principle on which the Court acts in such cases is
not affected either by the age or capacity of the person
conferring the benefit, or by the nature of the benefit
conferred (t).

" "Where a relation of confidence is once established,
either some positive act or some comjjlete case of abandon-
ment must be shown in order to determine it : " it will not
be considered as determined whilst the influence derived
from it can reasonably be supposed to remain (t).

Where the influence has its inception in the legal
authority of a parent or guardian, it is presumed to con-
tinue for some time after the termination of the legal
authority, until there is what may be called a complete
emancipation, so that a free and unfettered judgment may
be formed, independent of any sort of control (u). It is
obvious that without this extension the rule would be
practically meaningless. It is said that as a general rule

(r) Hall V. Hall (1873) 8 Ch. 430,
42 L. J. Ch. 444, where the former
cases are reviewed.

(s) Way's tr. (1864) 2 D. J. S.
365, 372, 34 L. J. Ch. 49 ; Half v.
Hall (1873) 14 Eq. 365, 377.

(t) Per Turner L. J. Rhodes v.
Bate (1866) 1 Ch. 252, 257, 260, 35

L. J. Ch. 267 ; Holman v. Loynes
(1854) 4 D. M. G. 270, 283, 23 L. J.
Ch. 529.

(«) Archer v. Hudson (1844) 7
Beav. 551, 560. 13 L. J. Ch. 380;
Wright V. Vanderplank (1855) 8 D.
M. G. 133, 137, 146, 25 L. J. Ch.


a year should elapse from the termination of the authority
before the judgment can be supposed to be wholly emanci-
pated : this of course does not exclude actual proof of
undue influence at any subsequent time (x). With regard Evidence
to the evidence to be adduced to rebut the presumption in to rebut
a transaction between a father and a son who has recently ^^q^^^q™^'
attained majority, the father is bovmd " to show at all influence,
events that the son was reallv a free agent, that he had Father
adequate independent advice . . . that he perfectly under-
stood the nature and extent of the sacrifice he was making,
and that he was desirous of making it."

"So again, where a solicitor purchases or obtains a benefit from a client, Solicitor
a court of equity expects him to be able to show that he has taken no ^^^ client,
advantage of his professional position ; that the client was bo dealing
with him as to be free from the influence which a solicitor must necessarily
possess, and that the solicitor has done as much to protect his client's
interest as he would have done in the case of a client dealing with a
etranger" (y).

He must give all the reasonable advice against himself
that he would have given against a third person (z). And
he must not deal with his client on his o^vn account as an
undisclosed principal. " From the very nature of things,
where the duty exists that he should give his client advice,
it should be disinterested advice ; he cannot properly give
that advice when he is purchasing himself without telling
his client that he is purchasing " («). If the client becomes
bankrupt, his trustee is entitled to the benefit of this
special duty (6).

The result of the decisions has been thus summed up
))}• the Judicial Committee of the Privy Council. " The

(as) See per Lord Cranworth, 7 solicitor.

H. L. C. at p. 772. (z) Gibson v. Jeyes (1801) 6 Ves.

(y) Saveryy. Kim/ (1865) 5 H. L. 266, 278. As to sulicitor's chargt-s

C. at p. 655, 25 L. J. Ch. 482. Cas- see Lyddon v. Moss (1859) 4 De G-.

hc/me V. Bursham (1839) 2 Beav. 76, & J. 1C4.

seems not quite consistent with this, (a) McPlierson v. Watt (1877)

but there the plaintiff was not the (Sc), -3 App. Ca. 254, 272.

client himself but bis assignee in (6) Luddy's Trustee v. Peard

insolvency, and the client's ownevi- (1886) .33 Ch, D, 500.
dence was r<*ther favourable to the






Court does not hold that an attorney is incapable of pur-
chasing from his client ; but watches such a transaction
with jealousy, and throws on the attorney the onus of
showing that the bargain is, speaking generally, as good
as any that could have been obtained by due diligence
from any other purchaser" (c). He is not absolutely bound
to insist on the intervention of another professional adviser.
But if he does not, he must not be surprised at the trans-
action being disputed, and may have to pay his own costs
even if in the result it is upheld.

" The broad principle on which the Court acts in cases of this descrip-
tion is that, wherever there exists such a confidence, of whatever character
that confidence may be, as enables the person in whom confidence or
trust is reposed to exert influence over the person trusting him, the Court
will not allow any transaction between the parties to stand unless there
has been the fullest and fairest explanation and communication of every
particular resting in the breast of the one who seeks to establish a con-
Iract with the person so trusting him " (d).

In other words, every contract entered into by persons
standing in such a relation is treated as being uberrimae
jidei, and may be vitiated by silence as to matters which
one of two independent parties making a similar contract
would be in no way bound to communicate to the other ;
nor does it matter whether the omission is deliberate, or
proceeds from mere error of judgment or inadvertence (e).

Thus a medical attendant who makes with his patient a
contract in any way depending on the length of the patient's
life is bound not to keep to himself any knowledge he may
have professionally acquired, whether by forming his own
opinion or by consulting with other practitioners, as to the
probable duration of the life (/). Perhaps the only safe

(c) Pisani V. A.-G. for Gihndtar
(1874) L. E. 5 P. C. 516, 536, 540.
According to Morr/an v. Minett (1877)
6 Cb. D. 638, there is a still more
stringent rule as to gifts — an abso-
lute rule of law "that while the
relation of solicitor and client sub-
sists the solicitor cannot take a gift
from his client." Sed qu. See at

end of this chapter.

{d) Ptr Page Wood V.-C. Tate
V. Williamson (1866) 1 Eq. at p.

(c) Molony v. Kernan (1842) 2 Dr.
& W. at p. 39.

(/) Popham V. Brooke (1828) 5
E-uss. 8.


way, and certainly the best, is to avoid such contracts

In Gro^venor v. Sherratt (g), where a mining lease had
been granted by a young lady to her brother-in-law (the
son of her father's executor) and uncle, at the inducement
of the said executor, " in whom she placed the greatest
confidence," it was held that it was not enough for the
lessees to show that the terms of the lease were fair ; they
ought to have shown that no better terms could possibly
have been obtained ; and as they failed to do this, the
lease was set aside (h).

This comes very near to the case of an agent dealing on
his own account with his principal, when "it must be
proved that full information has been imparted, and that
the agreement has been entered into with perfect good
faith." Nor is the agent's duty altered though the
proposal originally came from the principal and the prin-
cipal shows himself anxious to complete the transaction as
it stands (i). The same rules apply to an executor who
himself becomes the purchaser of part of his testator's
estate (k). But this obligation of agents and trustees for
sale appears (as we have already considered it, p. 272,
above) to be incidental to the special nature of their em-
ployment, and to be a duty founded on contract rather
than one imposed by any rule of law which guards the
freedom of contracting parties in general.

The duty cast upon a solicitor, or other person in a like
position of confidence, who deals on his own account with

ig) (1860) 28 Beav. 659, 663. (s. 17, illust. a): but if " B. ia A. 'a

(A) This ia an extreme case. The daughtei' and is just come of a<»e

Indian Contract Ac% s, 16, does not here the relation of the parties would

seem to go so far. It does make it make it A.'s duty to tell B. if the

the duty of a contracting party in horse is unsound " [ib. illust. 6).
loco 2M7-entis to the other to diacloae {i) Dally v. Wonhani (1863) 33

all material facts: "A. sells by Beav. 154.

auction to B. a horse which A. (k) iJaAe;' v. iieaci (1854) 18 Beav.

knows to be unsound. A. says 398 ; where however relief was

nothing to B. about the horse's un- refused on the ground of 17 years'

soundnf-s9. This is not fraud in A." delay.




his client, of disclosing all material circumstances within
his knowledge, does not however bind him to communicate
a " speculative and consequential " possibility which may
affect the future value of the subject-matter of the trans-
action, but which is not more in his own knowledge than
in the client's (I).

It must not be forgotten that the suspicion with which
dealings between parents and children presumably still
under parental influence are regarded by courts of equity
is to a certain extent counteracted by the favour with
which dispositions of the kind known as family arrange-
ments are treated. In many cases a balance has to be
struck between these partly conflicting presumptions.
" Transactions between parent and child may proceed upon
arrangements between them for the settlement of property,
or of their rights in property in which they are interested.
In such cases this Court regards the transactions with
favour. It does not minutely weigh the considerations on
one side or the other. Even ignorance of rights, if equal
on both sides, may not avail to impeach the transaction (Tii).
On the other hand, the transaction may be one of bounty
from the child to the parent, soon after the child has
attained twenty-one. In such cases this Court views the
transaction with jealousy, and anxiously interposes its pro-
tection to guard the child from the exercise of parental
influence " (n).

(I) Edwards v. Meyrick (1842) 2
Ha. 60, 74 ; Holmanw. Loynes (1854)
4 D. M. G. at p. 280.

{m) Perhaps it is safer to say that
the "almost invincible jealousy" of
the Court is reduced to " a reason-
able degree of jealousy : " op. Lord
Eldon's language in Hatch v. Hatch
(1804) 9 Ves. at p. 296, and Twcd-
dell V. Twcdddl (1822) Turn. & R.
at p. 13. On the question of con-
sideration see Williains v. Williams
(1866-7) 2 Ch. 294, 304, 36 L. J.
Ch. 200.

(w) Baker v. Bradley (1855) 7 D,
M. G. 597, 620. See also Wallace
v. Wallace (1842) 2 Dr. & W. 452,

470 ; Bellamy v. SabiTie (1835) 2 Ph.
425, 439; HoyMon v. Hoyhton (1852)
15 Beav. 278, 300 ; and on the doc-
trine of family arrangement not
applying when a son without con-
sideration gives up valuable rights
to his father. Saver y v. King (1856)
5 H. L. C. at p. 657. A sale by a
nephew to his [great] uncle of his
reversionary inteiest in an estate of
which the uncle is tenant for life is
not a family arrangement; Talbot v.
Stmiforth (1861)^1 J. & H. 484,
501. As to the amount of notice
that will affect a purchaser, Bain-
brigge v. Browne (1881) 18 Ch. D.
188, 50 L. J. Ch. 522.


It must be observed that the rules concerning gifts, or
transactions in the form of contract which are substantially
gifts, from a son to a father, do not apply to the converse
case of a gift from an ancestor to a descendant : there is
no presumption against the validity of such a gift, for it
may be made in discharge of the necessary duty of pro-

Online LibraryFrederick PollockPrinciples of contract: a treatise on the general principles concerning the validity of agreements in the law of England → online text (page 60 of 77)