
Contents
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1. General Principles 1. General Principles
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(A) The Essence of Exploitation (A) The Essence of Exploitation
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(B) The Relationship between Exploitation and other Principles (B) The Relationship between Exploitation and other Principles
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(C) Identifying the Enrichment (C) Identifying the Enrichment
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(D) Vitiation of Transactions for Exploitation (D) Vitiation of Transactions for Exploitation
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(E) The Relationship between Exploitation and Wrongdoing (E) The Relationship between Exploitation and Wrongdoing
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2. Undue Influence 2. Undue Influence
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(A) The Essence of Undue Influence as a Ground of Restitution (A) The Essence of Undue Influence as a Ground of Restitution
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(i) Establishing Undue Influence (i) Establishing Undue Influence
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(ii) The Rationale of Undue Influence as a Ground of Restitution (ii) The Rationale of Undue Influence as a Ground of Restitution
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(iii) Is Undue Influence Claimant- or Defendant-Orientated? (iii) Is Undue Influence Claimant- or Defendant-Orientated?
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(iv) Is Undue Influence a Form of Wrongdoing? (iv) Is Undue Influence a Form of Wrongdoing?
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(B) Actual Undue Influence (B) Actual Undue Influence
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(i) Establishing Actual Undue Influence (i) Establishing Actual Undue Influence
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(ii) The Identification of Undue Influence (ii) The Identification of Undue Influence
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(iii) Manifest and Unfair Disadvantage (iii) Manifest and Unfair Disadvantage
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(C) Use of Presumptions to Establish Undue Influence (C) Use of Presumptions to Establish Undue Influence
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(i) The Essential Features of the Evidential Presumption (i) The Essential Features of the Evidential Presumption
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(ii) Relationships of Influence (ii) Relationships of Influence
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(1) Recognized Relationships of Influence (1) Recognized Relationships of Influence
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(2) Factual Relationship of Influence (2) Factual Relationship of Influence
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(iii) Transaction Requires Explanation (iii) Transaction Requires Explanation
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(iv) Rebutting the Presumption of Undue Influence (iv) Rebutting the Presumption of Undue Influence
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(D) Undue Influence and Third Parties (D) Undue Influence and Third Parties
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(E) The Nature of the Relief (E) The Nature of the Relief
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(i) Restitution (i) Restitution
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(ii) Rescission Is Absolute (ii) Rescission Is Absolute
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(iii) Monetary Remedies in Lieu of Rescission (iii) Monetary Remedies in Lieu of Rescission
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(1) Abuse of a Fiduciary Relationship (1) Abuse of a Fiduciary Relationship
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(2) Restitution for Undue Influence (2) Restitution for Undue Influence
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3. Abuse of Fiduciary Relationships of Influence 3. Abuse of Fiduciary Relationships of Influence
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(A) The Identification of Fiduciary Relationships of Influence (A) The Identification of Fiduciary Relationships of Influence
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(B) The Relationship between Undue Influence and Abuse of Fiduciary Relationships of Influence (B) The Relationship between Undue Influence and Abuse of Fiduciary Relationships of Influence
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(C) Abuse of Fiduciary Relationships of Influence within the Law of Restitution (C) Abuse of Fiduciary Relationships of Influence within the Law of Restitution
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4. Unconscionable Conduct 4. Unconscionable Conduct
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(A) The Ground of Unconscionable Conduct (A) The Ground of Unconscionable Conduct
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(i) Inequality between the Parties (i) Inequality between the Parties
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(ii) Unconscionability (ii) Unconscionability
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(iii) Significant Imbalance in the Substance of the Transaction (iii) Significant Imbalance in the Substance of the Transaction
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(iv) Whether the Transaction Was Fair, Just, and Reasonable (iv) Whether the Transaction Was Fair, Just, and Reasonable
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(B) Identifying Unconscionable Conduct (B) Identifying Unconscionable Conduct
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(C) Unconscionable Conduct and Third Parties (C) Unconscionable Conduct and Third Parties
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(D) Examples of Inequality (D) Examples of Inequality
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(i) Transactions with the Poor and Ignorant (i) Transactions with the Poor and Ignorant
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(ii) Transactions with Expectant Heirs (ii) Transactions with Expectant Heirs
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(iii) Salvage Agreements (iii) Salvage Agreements
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(iv) Gross Inequality of Bargaining Power (iv) Gross Inequality of Bargaining Power
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(E) Statutory Regimes (E) Statutory Regimes
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Cite
Abstract
This chapter examines exploitation, not a ground of restitution in its own right but a general principle on which a number of specific grounds of restitution are founded. It particularly focuses on undue influence and the continued relevance of the distinction between actual and presumed undue influence. The complexity of seeking restitution where the undue influence has been exerted by a third party is analysed. The remedial consequences of undue influence are considered. The chapter also examines abuse of fiduciary relationships of confidence, the doctrine of unconscionable conduct, and whether the doctrine of gross inequality of bargaining power is recognized in English law.
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