Consent COMMON LAW
Introducti
on
The issue is whether [NAME1] can avoid the contract of [Issue]
To successfully avoid the contract, [NAME1] must prove that there was
a lack of consent, capacity, legality and/or formality when making the
contract.
*or
Whether [NAME2] can enforce the contract of [issue] on [NAME1]
Undue
Influence
To be successful at enforcing the contract, [NAME2] must prove that
there is no lack of consent, capacity, legality and/or formality from
[NAME1].
Was there Undue influence? Undue influence is stated as unfair
advantage by one party to contract over the other party.
To establish that there is Undue influence, it must be proven that
1) There is a pre-existing relationship among the parties such that
one has controlling influence over the other.
2) The stronger party have taken advantage of the situation such
that the weaker party is not exercising his individual judgment
when entering the contract.
As [NAME1] was [reason illiterate, old, ignorant of business affairs
etc.], he clearly relied [NAME2] for [issue]. Johnson v Buttress
(1936) can be used in support of this. [NAME2] abused his position
** and [NAME3] was clearly aware of this. There was Undue Influence
over [NAME1]. The [contract] is voidable as it is not enforceable.
** [Name] did not rely on [NAME2] for [issue]. [State Reason],
therefore there is no Undue Influence over [NAME1].
Undue
Influence
Special
relationship
s
Unconscion
ability
[Name2] and [Name] relationship is of a:
1) Doctor and patient
2) Lawyer and Client
3) Trustee and beneficiary
4) Parent/Guardian and Child
5) Religious leader and follower Allcard v Skinner (1887)
Thus, the law automatically presumes that undue influence is present
by virtue of both parties existing relationship.
NOTE if relationship is below, go to UNDUE INFLUENCE, NOT SPECIAL
RELATIONSHIPS
1) spouse and spouse,
2) principal and agent,
3) accountant and client,
4) bank and client
5) employer and employee
6) carer and patient
Was there unconscionability?
Unconscionable conducts are acts of taking advantage of another
persons special weakness or disadvantage.
To prove unconscionability, it must be established that a party has
special disability, thus grievously impairing his bargaining power and
as a result of the other party taking advantage of the situation, an
unfair contract is formed.
[NAME1] was [Reason], thus there was unconscionability on his part.
Commercial bank of Australia v Amadio (1983) can use in
support of this. Thus the [contract] is voided as it is not enforceable.
** Thus there was no unconscionability on his part. Thus the contract
is not void and it is still enforceable.
**Reasons
poverty or need of any kind
Sickness
Age
Sex
Infirmity of body and mind
Illiteracy or lack of education
Drunkenness Blomley v Ryan (1956)
Lack of assistance or explanation where that was necessary
Being in love Louth v Diprose (1992)
Non-EstFactum
Non Est Factum, or not my deed, refers to a claim that a written and
signed contract contains terms or legal consequences of which one of
the parties was unaware as a result of a disability or disadvantage.
Doesnt take in to effect if party is LAZY, or in a HURRY, therefore
did not read contract.
1) Blind, or illiterate, or not encouraged to read documents as a
result of misrepresentation Petelin v Cullen (1975) and 2)
the mistake must be about a fundamental nature of the
document. The contract is void and unenforceable.
[State reasons]
Other Vitiating factors if dont have, say - EG. duress does not apply to this case
as [reason]
Duress
Was there duress?
If [NAME1] was under constraint or actual injury while making
contract, contract may be void or voidable Barton v Armstrong
(1973) example of physical duress.
Threats to a partys economic interests are considered Economic
Duress North Ocean Shipping Co Ltd v Hyundai Construction
Co Ltd
Capacity
Minor
contracts
In this case [..] which [eg. Lead him to sign the contract.]
therefore, there are clear signs of duress in this case and the contract
may be void or voidable.
Minor contracts are contracts entered into with people under 18 years
old. s3 of the Age of Majority Act 1977 (Vic)
- General rule is that minors can enter into contracts, but they are
only enforceable BY the minor, not AGAINST him or her.
- This however, does not cover contracts for NECESSARIES such as
clothing, shelter, food, accommodation and education. Contracts
pertaining to such are valid and enforceable AGAINST the minor.
- ** if its contracts for employment, education or training use
Hamilton v Lethbridge
- Do take note that the court takes into account the minors needs
**legality
and standard of living before determining what is consider
NECESSARY for the minor. s7 of the Goods Act 1958 (VIC)
establishes what are necessaries.
So the question is : does the item pertaining to the contract
considered a necessity?
Was the contract legal? Was there illegality involved?
Contracts to commit a crime or tort are void
RESTRAIN
T OF
TRADE
Under the Nordenfelt rule, Contracts in Restraint of trade are prima
facie illegal and void, UNLESS it is in the parties and the publics
interest. (cannot open another business of the same trade.. etc.. are
voided as it stifles economy)
Restraints in freedom of use of GENERAL SKILLS AND KNOWLEDGE
cannot be valid , as established in Herbert Morris v Saxelby
Confidential info and Trade secrets however, such as [Special Recipe],
which will be acquired in the course of her employment can be
restricted by [Name] as established in Forster V Suggett.
STATUTORY
RIGHTS
ACL
To establish a valid restraint, the restraint must also fall under
reasonable time and space. If the time and space is unreasonable, it
will still be void and unenforceable.
In this case [] which is reasonable/ not, thus it is valid/ not valid.
ACL s 20 can also be used if [NAME] wants to pursue her Statutory
rights. S 20 of ACL prohibits a person from engaging in conduct which
is unconscionable within meaning of Common Law. Therefore, [NAME2]
has breach s20 of ACL due to unconscionable conduct and the
contract is unenforceable.
ACL s 21 prohibits unconscionable conduct with regards to supply and
Acquisition of goods and Services
ACL s 22 Provides the list of specific matters court takes into account
deciding whether there has been a breach of s21
