Abstract:
The equitable doctrines of undue influence and unconscionable dealing have hitherto been recognized as two independent doctrines in Australian law. Both serve to safeguard the interests of persons afflicted with legal disabilities and relieve them of legal transactions that are repugnant in the eyes of Equity, particularly where such transactions may be recognized and upheld at common law.
Undue influence is a plaintiff-oriented doctrine that operates to avoid legal transactions procured in circumstances where the plaintiff’s consent is defective, while unconscionable dealing grants relief upon the basis of a defendant’s exploitation of a plaintiff’s special disability contrary to the good conscience of Equity.
However, it is argued that undue influence and unconscionable dealing may operate to a significant extent as a single doctrine. This is because they are both underpinned by the existence of particular disabilities inherent in plaintiffs (such as old age and unfamiliarity with the English language) or those emanating from the relationship between plaintiff and defendant (such as trust and confidence reposed in the defendant by a plaintiff) that render a plaintiff’s interests especially vulnerable to be adversely affected by a defendant’s conscious and wrongful acts …
Zhao, Hamilton, A Proposal in Equity: The Marriage of Undue Influence with Unconscionable Dealing? (December 30, 2013).
First posted 2014-01-13 14:25:32
Leave a Reply