The onus of proving that undue pressure was brought to bear upon him while signing a contract will devolve upon the person who signed it.
Undue influence is the unconscientious use by a person of power possessed by him over another in order to induce that other to enter into a contract. The relationship between the parties may be of a parental, or spiritual, or confidential character, as, for instance, solicitor and client, guardian and ward, physician and patient, principal and agent, and husband and wife, although it is not absolutely necessary that there should be any such relationship between the parties. But a contract executed by a ward in favour of a guardian, or a donation from a child to a parent, or from a beneficiary to an executor, will always be regarded with suspicion.
It is impossible to lay down a general rule, because each case must rest on its own merits and on such circumstances as the non-intervention of a disinterested person or professional adviser, and the age or mental state of the person making the contract.
Duress Duress is still stronger than the exercise of undue influence, and therefore generally easier to prove. Duress may be defined as the compulsion under which a person acts through fear of personal suffering, either from bodily injury or from confinement. Thus in a case where a woman had been carried off to a private lunatic asylum and forced to. consent to an arrangement signed by her counsel, under which she gave up certain deeds, it was held that the arrangement was obtained from her by duress, and was not binding.
A still more curious case was that of a girl who was induced by her mother, who had a great ascendancy over her, to go through a ceremony of marriage, which she did under the belief that it was merely a form of betrothal. On a petition for a decree of nullity of the marriage, the Court found that she had acted under the duress of her mother, and granted a decree. But a threat to make a man a bankrupt or to bring a civil action against him does not, as a general rule, amount to duress.
Although a duress of goods will not avoid a contract, still money may be recovered which has been paid in order to obtain possession of goods wrongfully withheld, on the ground that the payment is not a voluntary one. So that in a case where a mortgagor paid a sum of money under protest in order to obtain his title deeds, which were withheld by the mortgagee's solicitor, it was held that he could recover the amount from the attorney as money had and received. And where an overcharge was made by a firm of carriers, and the plaintiff paid the excess under protest, and then sued for its recovery, the action was held maintainable.
Must be by Deed The contracts which, in order to be enforceable, must be made by deed may be stated broadly as contracts made without valuable consideration - the contracts of corporations, leases for more than three years or reserving a rent less than two-thirds of the full improved value, assignments and surrenders of leases, transfers of shares in registered companies, and contracts for the transfer of a British ship or a share in it.
Some memorandum or note in writing, signed by the party to be charged, or by some person lawfully authorised by him to sign, must be made in the following cases : A contract by an executor or administrator who incurs a personal liability to discharge a debt or obligation of the testator or intestate; a contract to become liable for the debt, default, or miscarriage of another person; a contract made upon consideration of marriage; a contract relating to lands, tenements, or hereditaments, or any interest in or concerning them; a contract which is not to be performed within one year from the making of it.
Goods in Value £10
A contract for the sale of any goods of the value of £10 or upwards is only enforceable when the buyer accepts part of the goods sold, and actually receives them, or gives something in earnest to bind the contract, or in part payment, or when there is some note or memorandum in writing signed by the party to be charged or by his agent. And it makes no difference if the goods are not made or ready for delivery, or are not intended to be delivered until some future time.
If a person buys a number of articles at a time at small prices, the whole bill for which amounts to £10, the contract comes under the statute. A man went into a linendraper's shop and bargained for a number of articles, a separate price being agreed on for each, which in no case was as high as £10. He did not pay cash or leave anything on account, but when the bill was sent him, amounting to £70, quarrelled with the discount, which was five per cent, for ready money, and refused to accept the goods. But the linendraper lost the action which he brought on the contract, because there was no memorandum in writing, and it was held that the whole bargain must be regarded as one transaction. Where, however, at an auction several successive lots are knocked down to the same person, a distinct contract arises as to each lot, and the bidding for each is a separate transaction.
Where a primary liability is incurred by the promisor, the statute has no application. Thus a promise to pay a debt incurred by an infant is binding, although not evidenced in writing. But in order to discover who is primarily liable great attention must be paid to the way in which the promise is worded. If, for example, you introduce a friend to your dressmaker, and say, " This lady wants you to make her a costume, and it will be all right, because if she doesn't pay, I will," your friend is primarily liable, and you cannot be successfully sued as her surety, because your promise is not in writing. But supposing you say, "Make this lady a hat, and put it down to me," you are primarily liable and your promise need not be in writing, because you are not promising for her but for yourself.