Common Law Essay Example

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Common Law

(Words: 1,317)

ISSUE: Did the actions of the manager of Easymony (defendant) entering a contract with Mrs. Parker (plaintiff) constitutes undue influence?

Common law/ undue influence

RULES: In contract law, the vitiating factors illustrate that undue influence is when a person of high office uses his power to influence a decision of the other party1. This is possible when there exists a relationship between the two parties which may either be a parent child relationship, a government citizen relationship, and a solicitor client relationship. Where a relationship does not exist, the plaintiff must prove beyond limits that there was trust and confidence when the other party influenced the decision in context.

To prove undue influence, the following factors must be proved. One of the factors is that, the will must contain a substantial benefit to the beneficiaries. The second factor is that beneficiary was assisted in making the will under context2. The third factor is that the beneficiary must prove that there was an opportunity to exercise the influence. The fourth factor is that there must be a uncommon disposition that guarantees undue influence. The last factor that the beneficiary must prove is that he was highly prone to undue influence as he was highly illiterate, drunk or any other factor to render the judgment of being unable to make an informed decision over the decision or will made.

Onus of proof: The burden of proof lies with the stronger party to justify its actions, as in the case of Allcard v Skinner (1887) 36 Ch D 14 and Lloyd’s Bank v Bundy [1975] QB 326.

Application: was Mrs. Parker disadvantaged?

Mrs. Parker was disadvantaged in this process and finally in the signing of the contract as she was unable to make decisions on her own before signing of the contract. One of the major factors that Mrs. Parker suffered from was lack of poor language. This affected her as she could not communicate well with the manager. She could also not read and write hence she did not acknowledge through her own decision to sign the contract. First she did not understand the contract that she was signing as she could not understand the terms and conditions of the contract. The second factor that disadvantaged Mrs. Parker was lack of unsound mind due to her low literacy levels. Mrs. Parker could not make a sound decision as she lacked sound mind to calculate his future occurrences. She mosty relied on her son Norman who was more literate in making decisions. The manager of Easymony using his superior marketing and bargaining skills found it easy to convince Mrs. Parker sign the contract documents to his advantage. This conduct was not a good move as it did not factor in the conduct of good will and equity in the relationship. Assuming that all clients who visited the finance company were not from that country, the company could have taken steps to find a translator who could help such illiterate make an informed and commercial decision.

The likely remedy requested by the plaintiff would be the rescission of the whole contract


The likely outcome of this case is that the onus of prof on the defendant to justify its actions the court would find it in favor of the plaintiff. The elements would be that the finance company used undue influence on Mrs. Parker as she signed the contract out of pressure and not being able to understand the terms and conditions in the contract. The most effective remedy for this case would be a rescission to be made on the contract to enable Mrs. Parker make an informed decision after consulting his son Parker.

Issue: common law/ contract law/Express and implied terms

Rules: a condition is a term that is widely used in contract law to refer to the main body of the contract as it entails the terms and conditions to be fulfilled in the contract, and it forms the essential part of the contract, by going to the root of the contract3. A warranty is another term also used to refer to the trust and confidence injected into the contract by both parties. This term is not essential to the contract and does not form the root of the contract.

Courts apply the test of essentiality in order to determine whether a term in the contract is a condition or a warranty. The essentiality of the terms is determined by assessing the importance of the terms, and whether the innocent party would have entered the contract if they were not fulfilled4. If the answer is yes, then the term is not essential and would be a warranty and would only require the innocent party to be awarded damages and not termination of the contract. If the condition requires that the entire contract be terminated if it is not fulfilled, then it is of primary essence, and is a condition.

Breach of contract entails when one party fails to meet the laid down terms and conditions of the contract5. This warrants the other party to claim damages and termination of the contract as they would have been affected by the breach of the contract. On the other hand, a breach of warranty allows the injured party to root for benefits and damages arising from the breach but does not entitle them to termination of the contract. In determination of whether warranty and condition have been breached, a test of essentiality is used as it enables the jury to determine whether the party which entered the contract was innocent and were not aware of the damages that arose from breach of the contract. Using the essentiality test, a contract that if breached arises to termination is considered to contain conditions a reverse of what a warranty entails6.

Possible remedy: if the term breached is found to be under warranty then Melbourne symphony orchestra will be forced to pay Jason for the damages arising from the termination of the contract as they had wrongfully terminated it. If breach was found to be under contract, then Melbourne symphony orchestra was under its rights to terminate the contract. They may also claim damages arising from the contract as the plaintiff would be blamed for the initial breach.


The court will have the final verdict on this case as it will have to determine whether the plaintiff was in breach of the term contract and if this constituted a contract of condition or warranty using the essentiality test. If the plaintiff was in breach of the contract of condition then the Melbourne symphony orchestra was right to terminate his contract after he failed to honor the 10 scheduled rehearsals an opted to attend only 3. If it constituted a contract of warranty then Melbourne symphony orchestra was out of its powers to terminate the contract and they ought to pay Jason damages arising from the termination of the contract 7as he had cancelled other events to attend the concerts of Melbourne symphony orchestra. This ruling is based on the precedence set by Shepperd V. the council of the municipality of Ryde (1952) 85CLR 1.


The breach of contract of by Jason is likely to be classified under warranty and the plaintiff will be rewarded damages that arose from termination of the contract as well as being hired back to progress with the concerts of Melbourne symphony orchestra.

Cohen, N. 2005, Comparative remedies for breach of contract. Oxford: Hart.

Rehwoldt, S. 2005, Law. Detroit: Lucent Books.

Rowan, S. 2012, Remedies for breach of contract: a comparative analysis of the protection of performance. Oxford: Oxford University Press.

Burrows, A 2011. A Casebook on Contract. London: Hart.

T Ciro, V Goldwasser, R Verma, Law and Business, Oxford University Press, Melbourne 2011, p. 120.

Goode, R., & McKendrick, E 2009. Commercial Law. London: Penguin