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Mortgage Law and the Vitiating Factors
Pages 15 (3765 words)
One of the major vitiating factors of the contracts in general and mortgage law in particular is 'undue influence'. "Equity gives relief on the ground of undue influence where an agreement has been obtained by certain kinds of improper pressure which were thought not to amount to duress at common law because no element of violence to the person was involved" (GH Treitel, The Law of Contract) There can be actual undue influence and presumed undue influence.
The circumstance of evidential presumption comes to the fore when there existed a relationship of trust and confidence along with the happening of a transaction that calls for an explanation. These facts need to be proved in order to establish that there is prima facie evidence to claim that the transaction took place under undue influence. "The evidential burden gets shifted to the stronger party to counter the inference that he or she exercised undue influence on the weaker party." 1 Thus the presumption of undue influence is based on two elements; (i) existence of relationship of trust and confidence and (ii) there was entered a transaction that calls for explanation.
There are certain established relationships of trust and confidence like that exists between guardian and ward, parent and child, religious leaders and disciples, doctor and patient and solicitor and client.2 With the proof of the relationship it becomes the legal presumption that there existed a relationship of influence between the parties. The relationship of influence can also be proved by the facts of the case. ...
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