
Contents
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Introduction, aims and methods Introduction, aims and methods
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Unconscientiousness Ex Post Unconscientiousness Ex Post
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Principal Aims Principal Aims
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Separating the pressure cases Separating the pressure cases
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A Presumption of Duress? A Presumption of Duress?
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Relational undue influence Relational undue influence
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The Cases: Presumed Relational Undue Influence The Cases: Presumed Relational Undue Influence
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Rebutting the Presumption Rebutting the Presumption
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Actual Relational Undue Influence Actual Relational Undue Influence
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Prophylaxis Prophylaxis
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Third Parties Third Parties
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Victimization, manifest disadvantage, and knowledge Victimization, manifest disadvantage, and knowledge
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Knowledge Knowledge
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The meaning of ‘undue influence’ The meaning of ‘undue influence’
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Duress, Personal Disadvantage and Breach of Fiduciary Duty Duress, Personal Disadvantage and Breach of Fiduciary Duty
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Duress Duress
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Nonrelational Personal Disadvantage Nonrelational Personal Disadvantage
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Breach of fiduciary duty Breach of fiduciary duty
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Conclusion Conclusion
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Appendix: Textbook positions on undue influence Appendix: Textbook positions on undue influence
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3 On the Nature of Undue Influence
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Published:August 1997
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Abstract
This chapter analyses undue influence, not as a matter of ‘victimization’, which implies wicked exploitation by the defendant, but as a matter of ‘excessive dependence’ on the part of the plaintiff. Resisting current tendencies to assimilate undue influence to unconscionable behaviour, it argues that all cases of improper pressure which have been litigated as undue influence can and should now be classified as duress. In the cases that remain, which are viewed as ‘true’ undue influence, the ground of rescission is solely the marked impairment of the plaintiff's capacity to make an independent judgment, that impairment arising from loss of autonomy brought about by the nature of the relationship between the two parties.
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