(e) Carter v. Palmer, 8 Cl. & Fin. 657, 705 sq.; Holman v. Loynes, 4 De G. M. & G. 270.

(/) See cases cited above, p. 760, n. (a); Clark v. Clark, 9 App. Cas. 733, 737; Be Boles and British Band Co.'s Contract, 1902, 1 Ch. 244, 247.

(g) Above, p. 757.

Williams v. Bayley.

Ellis v. Barker.

Sturge v. sturge.

Inequality of position between the parties, coupled with unfairness.

Longmate v. Ledger.

(h) Williams v. Bayley, L. R. 1 H. L. 200; see also Kaufman v. Gerson, 1904, 1 K. B. 591.

(i) Ellis v. Barker, L. R. 7 Ch. 104.

(k) Sturge v. Sturge, 12 Beav. 229, 245; see also Dunnage v.

White, 1 Swanst. 137, 151.

(1) Evans v. Llewellin, 1 Cox, 333, 340; Wood v. Abrey, 3 Madd. 417, 423.

(m) Longmate v. Ledger, 2 Giff. 157; affirmed, see 4 De G. F. & J. 402.

Clark v. Malpas.

It will be observed that in all the above-mentioned cases of inequality of position between a buyer and a seller, the inadequacy of the consideration given for the sale has been a material reason for setting aside the sale. A contract of sale is not voidable merely on the ground that the parties occupied unequal positions, as that the buyer was rich and well advised and the seller was poor or in a humble way of life, or old and ill, and had no independent legal advice (t); although it appears that these circumstances are sufficient to oast upon the buyer the burthen of proof of fairness (u). In the same way, inadequacy of consideration is not of itself alone a ground for avoiding a sale; and further, if no more be proved than this, it does not appear that the party challenged is obliged to establish the fairness of his bargain (r). The ride of equity in this respect accords with the rule of law (x) and leaves the parties at liberty, if they be of full legal capacity and no constraint be put upon their wills, to make what bargain they please between themselves (x). But the fact that a sale was at an undervalue, is evidence from which it may be inferred that the party thereby benefited was guilty of fraud or undue influence (x); and where it is sought to set aside a sale on these grounds the inadequacy of the consideration given may possibly be so gross as to leave room for no other inference than that the bargain was obtained by undue influence or fraud (y). It is also considered, according to the great preponderance of authority, that inadequacy of consideration is not of itself alone a good ground for resisting the specific performance of a contract for the sale of land (z).

Inequality of position alone is not sufficient.

(n) Clark v. Malpas, 4 De G. F. & J. 401.

(o) Wood v. Abrey, 3 Madd. 417; Baker v. Monk, 33 Beav. 419, 4 De G. J. & S. 388; Fry v. Lane, 40 Ch. D. 312, 321, 322; James v. Kerr, ib. 449, 460; Bees v. De Bernardy, 1896, 2 Ch. 437, 445.

(p) Ford v. Olden, L. R. 3 Eq. 461: Trees v. Coke, L. R. 6 Ch.

(q) Knight v. Marjoribanks, 2 Mae. & G. 10, 13, 14; Melbourne Banking Corp. v. Brougham, 7 App. Cas. 307, 315.

(t) Above, pp. 757, 758.

(s) Baker v. Monk, ubi sup; Frees v. Coke, L. R. 6 Ch. 645, 649; Fry v. Lane, 40 Ch. D. 312, 322; and other cases cited in notes (m) (n) (o), above.

7 (2)

Inadequacy of consideration alone is not sufficient.

Inadequacy of consideration alone no ground for resisting specific performance.

(t) Harrison v. Guest, 6 De G. M. & G. 424, 432, 433, affirmed, 8 H. L. C. 481 ; Rosher v. Williams, L. R. 20 Eq. 210, 213, 217.

(u) Above, n. (s).

(v) Griffith v. Spratley, 1 Cox, 383; Peacock v. Evans, 16 Ves. 512,517; Wood v. Abrey, 3 Madd. 417,423; Stilwell v. Wilkins, Jac. 280, 282; Cockell v. Taylor, 15 Beav, 103, 115; Harrison v. Guest, ubi sup.

(x) Litt. s. 341; Sturlyn v. Albany, Cro. Eliz. 67; Bo/ton v. Madden, L. R. 9 Q. B. 55, 57; Carlill v. Carbolic Smoke Ball Co., 1893, 1 Q. B. 256, 264, 271, 275.

(y) See Gwynne v. Heaton, 1 Bro. C. C. 1, 9; Underhill v. Herwood, 10 Ves. 209, 219; Stir-well v. Wilkins, Jac. 280, 282; Rice v. Gordon, 11 Beav. 265, 270 ; Summers v. Griffiths, 35 Beav. 27, 33; Lord Westbury, Tennent v. Tennents, L. R. 2 Sc. 6, 9.

(z) Collier v. Brown, 1 Cox, 428; White v. Damon, 7 Ves. 30, 35; Coles v. Trecothick, 9 Ves. 234, 246; Burrowes v. Lock, 10 Ves. 470, 474; Western v. Russell, 3 V. & B. 187, 193; Borell v. Bann, 2 Hare, 440, 450; Abbott v. Sworder, 4 De G. & Sm. 448; Haywood v. Cope, 25 Beav. 140,

In this case, as in that of the rescission of the contract, undervalue is merely a matter of evidence to be weighed along with the other facts of the case. And notwithstanding that the specific performance of a contract may be refused on the ground of hardship or unfairness -reasons which are of no avail to support a claim to rescind the contract (a) - it is thought to be settled at the present day that, where the only evidence offered of hardship or unfairness is the inadequacy of the consideration, the Court will not withhold the remedy in question (b); unless the undervalue were so gross as to raise, when considered in connexion with the circumstances of the case, an irresistible inference of fraud or undue pressure (c).

An exception to the rule, that mere inadequacy of consideration is no reason for setting aside or resisting specific performance of a contract, was formerly admitted in the case of the sale by private contract of estates in remainder or reversion (d) or other reversionary property; where the onus was on the purchaser to prove that he had given the fair value of the thing sold (e). This exception formed one branch of the jurisdiction of the Courts of Equity to set aside catching bargains made with expectant heirs or persons in a similar position (f). The exception was, as we have seen (g), abolished by statute as from the 1st of January, 1868; since when no purchase made bond fide, and without fraud or unfair dealing, of any reversionary interest in real or personal estate is to be opened or set aside merely on the ground of undervalue (h). It is held that the effect of this statute is simply to place sales of reversionary property on the same footing, with respect to the liability of being avoided for mere inadequacy of consideration, as sales of property in possession; that the Act does not otherwise alter or affect the jurisdiction of the Court to set aside or revise catching bargains with expectant heirs or reversioners; and that undervalue is still a material element in cases where it is sought to set aside the sale of a reversion on other grounds than that of undervalue alone; as, for instance, where the claim is based on inequality of position and absence of legal advice, coupled with unfairness in the terms of the bargain (i).