yeah so uh los carmen said that uh we should look out for the following uh factors one did the quest have an alternative course open to him the person complaining of the rest when he was threatened did he have alternative course another option that is not the end of the inquiry two democratic west protest did that party protest in any way and three the departed west have independent advice if you had independent advice then you cannot complain of what the rest the department was take steps to avoid the contracts if you took steps to avoid the contract after pressure had been removed and know that all those things would be very important factors in making a determination as weather address existed or not so coming back to the modification uh contracts uh you we're talking about william and rafael brades i know that in a sense you see there but let's say we have a reference we have like the main contracts and it is not the case that the subcontractors are necessarily threatened that they wouldn't do the work the pace at which the work was going was not satisfactory and the main contractors were afraid that if they did not provide motivation or incentive for the subcontractors and they are not able to get their part of the work done it may affect the ability to deliver on the entire contracts they went out of their way to promise and that is why they said that already they had a contractual obligation to do well to perform and then the course said okay but if they have not performed you're going to want to get some other displeasure or inconvenience that matter that can be understood as a benefit in what an entrepreneur it looks similar but not all the time that you'll be able to say that it's certainly a case of address if for example in that case the subcontractors had actually made the demand just as what i feel in the build quite clear you're entitled to so much but take this otherwise you're not going to pay anyone anything so you are put to election and you have no choice so you just have to give in or uh live with the threat that do not pay you at all yeah so that is a good observation so the pressure the pressure must be illegitimate it must be illegitimate so for example where there's a threat to breach a contract there's a contract between uh a and b and a has threatened b that unless uh b gave in to some other things he was going to breach that existing conduct so that is a legitimate contract and it's illegitimate in the sense that it arises from something which is quite uh unlawful so the point to me that accommodate the rest is in terms of presentation may come along with the cases of lack of consideration like the canal or the even the duress the what they call the dnc builders and then the william and roughly but there's a type of a case but as i said it will depend upon the person who is issuing if on your own you have made a new promise in order to entice the existing i mean entice other person you have existing contractual arrangement to do certain things you cannot later complain that you agree to the new contracts or the modification as a result of the rest by the difference if the person who supports the wrong obligation for example may demand that unless you agree to these new terms or this new price are not going to perform then that one is a different matter so in some cases they can go together but you don't have to conclude that anytime we have a modification of a contract then there is a case of undo what influence so if we look at the atlas express against kafka if we read it you'll notice that the agreement was concluded or held not to be valid for economic duress announcing for lack of conservation but those of us in ghana uh the issue of lack of consideration is not so much ability presented because of acts because of votes acts 25 yes but certain threats may not appear to be illegitimate such as a threat not to enter into your contract if someone has threatened not to enter into your contract with you well you don't have an entitlement that someone should enter into contract with so if the person is threatening not to enter in the contract with you you can't say that that is a illegitimate pressure as it were or is someone threatening to sue you 22 several proceedings yahweh me i serve you and notice or pay me 10 000 pay 8000. otherwise i will see you to demand the 10 000 and the interest and the cost of lawyer fees and all that the threat to steal you is not illegitimate so that cannot give us assuming you agree to pay that cannot give rise to what uh uh arrest or someone threatens to call the police uh do this or agree otherwise i call the police that is not illegitimate it is legitimate isn't it if you are not doing something which will call for intervention by the police looking if someone said that record the police yes so there's an exception okay try to reach your promise to marry is that what you mean i don't know if you can if you can explain so that all of us will understand no you mean yes what is it in a person and a person agrees to marry you and later on you complained that the agreements the marriage was what as a result of the rest or of course when we are doing family law there's something we call the uh what they call the uh annoyment of marriage so if i know you have interest in those motherboard wait until you're dealing familiar then you discuss more about that but for now let us just concentrate on what we have yes to see what your goose yes i think we have provided the answer already or what what is that we provided the answer in this lecture well let count as a duress unless you agree i have ceased or i'm going to take over your car or your back is that a kind of thing no you are talking there's something called l-i-e-n uh we in that case we need to find out whether lean is applicable learn simply means that you have a legal right to detain or hold on to someone's movable property or something until he or she has uh met a certain obligation in osu so if in long you were entitled to exercise them and that would not be illegitimate present the door depends which one please yes how can i do it yes yes okay yes i think the alien idea is still there because there's an old transaction and you you owe him and he's entitled to payment something of yours comes into his custody of possession and says that not until you pay me i'm not going to give it to you so if you sue him for conversion or death unless the case may be you can set up your adaptedness as a defense so in that case there's some kind of a right of set of set of problems as the case may be for the second the time to be taken there shouldn't be it shouldn't be you are owing me a hundred thousand i see a property of yours and i tell you that if you don't have a pay i'll take it and you ignore i'll take the property still me why you are doing recovery you're talking about taking the loan to your hands so you go to court there is something you call the preservation order right you can go to court and then you let the report make further for preservation so that the person cannot sell it until you have actually gone through the proceedings to determine your claim and all that let's you know whether we finish or we don't finish we have to do a new influence we have to discuss illegality and public policy then we need to do decide the contracts then we are done and all this must happen before the next two weeks end so the choice is yours [Music] so you can use the class platform for some of these questions yeah so i mean we are just building upon the lowest commands point so let's move on time is faster yeah what are the remedies for recession you've already stated that no remedies for the rest that really contradicts [Music] but the rest is a creature of common law or is a doctrine developed at common law equity has added on to this concept by an icon and by undue influence we are saying that a person's free will or judgment was excessively influenced without threat to the person and usually it will have to do with relationships a contract between two parties become a certain relationship between them one of them may be in a dominant position and the other may be in the relatively weaker position so that the person in the relatively position may not be able to negotiate at arm's lengths with the dominant party and for that matter equity would have the weaker party's consent might not have properly reward and that basis for this equitable doctrine of uh undue influence therefore and influences the improper use of power which deprives a party's ability to exercise a free choice because of domination of another and as i said it will usually happen when we take the two parties to the contracts one is in a superior position or dominant position or domineering position as well another person is a relatively weaker position and for that matter the contracts which has okay or what has been concluded cannot be said not to have been influenced by the kind of the relationship between them and if that is true then there's a need for intervention of the court to ensure that the writing is done but we need to appreciate the fundamental distinction between rest and undue influence with respect to influence there is no use of force or a threat of injury so there is no use of force or threat to fill you use a force for threat of injury or threat of a use of force it has to do with what the rest but undo influence there's a stronger personality who dominates the will of a weaker party maybe this is [Music] religious leader in a follower chief justice [Music] [Music] [Music] is okay athene that place my mike has gone up so we have to keep fire that was not here so undue influence is based on the misuse of relationship of trust or confidence between the parties so clearly where we have additional relationship organization based upon trust and confidence automatically on the influence is relevant and where on the influence is established then the contract is voidable and at least uh tonight everybody is clear in this way of mine what avoidable contract is as a forced world void contract so this at the paint of being a repetitive avoidable contract is a contract finding or valid for the time being but may be set aside at the instance for adoption of a person is agreed by any of the officiating world factors as the case may be so where you are complaining about treatment of course you have to apply for recession to have their contract set aside and contrast which are induced by undue influence are of two kinds and as i've told you i would like you to supplement our discussion with the this is chapter 10. so whatever is contained there is still considered important then there is a case we call the hemant and coffee which i will send to you it's on the uh 2000 i mean under the supreme court it's very interesting uh of course those days apologies to our police officers here when people used to use their police officers to collect debts right and then you study aspects building materials and there's no pain you get the police to arrest him if initially they're looking they're not getting him so go even a raise the son and then later on you get the father you arrest him and then you put pressure on him that if he doesn't have money uh he accept that he owns the house so he will agree to sell the house so that the money will be used to pay off their creditors and then the police will facilitate the arrangement of even looking for buyer and all that and they get a buyer the man signs the document money is made he pays off the creditor he's now released from a detention and set free and then he later on goes to get lawyers i know is that this has been my uh beta experience and then i'm going to say that the sale of the property should be set aside and then they go to court so you read hemans and coffee and i'd like you to read the judgment of the justice aqua as he then was later became the chief justice very beautiful judgment hermes and kofi are i'll give it to h-e-m-e-a-n-s and coffee ezekiel's god made the citation hammers and coffee so we have two kinds of situation in which undue influence will be applicable contracts where undue influence is presumed so we have recorded presumed undue influence and the natural award on the influence so let's look at the two and then some of the examples i have given who come under one of them the presumed uninfluence and then the actual undue influence so uh they presume uh undue influence we are talking about situation where there's a fiduciary relationship one party is in the position of dominance over the other not of over the other so a parent and a child of course can you do a very serious agreement with your parents who doubt the relationship one way or the other affecting your judgment so that if you had probably made a contract with a person it would have been something else about 11 to 12 years ago i did a case involving a father and a son one of the the saddest case i have had to do as a lawyer the the father was i think a pentecost elder so their son got the opportunity to go to school in the u.s you know some of these things and the father arranged with his uh pentecost friends or network and then over there and what a good arrangement for the sun so the sun did some kind of uh industrial work this is a bit of a student work and was involved in an accident industrial you know accident and they did insurance claim and they had about six hundred thousand dollars and then ended up giving about five hundred thousand or four hundred dollars to the sun now the father had gone to japan to also uh do survivor strategies so the sign called the fact that that would be at japan for a long time this is the way god has opened for me about 400 thousand dollars so please come back home and join mommy and i'm sending the money down to you so that you can set up something here and uh later on then i will come and join you so the father abandoned everything was doing in japan and this i'm talking to you is not a story it's a rare case which went to the high court except that uh getting to the latter part uh still saying there was some kind of resolution we didn't proceed to pray judgment the father came down he brought the money he set up some business and after some time the sun also came down from u.s now when the sun came down i don't know but that one of the ankles of the of the sun that is a mother's brother they had been advising the the the young man so the man said that he was at home one day the guy the son had gone out and come then he came back and told the father that daddy uh make your will make your will and it was a bit strange isn't it their father was not like somebody who was sickly or somebody was just going to do something like that and so that was quite strange and so the father asked him what was happening in about three or four days the son are going to accra to get some uh very senior officers at the ghana police service and then they got you know some of these well armed young police they used to do virus operation a very special it's very good as equivalent of there is a piece a little or something all the way from accra to come and take the father and then eating the father to bring all the money [Music] all you see how money can be very dangerous you have to be very careful yeah so we also have like a trustee if you are interested i'll tell you later if i'm telling you the case we guess the class will go on tracy and beneficiary uh you have a trust and then a beneficiary that is another and now when we are doing privity of contact we explain trust is it so you know where trustee is don't you good then solicitor and client is quite obvious and solicitor and client again in 2008 i had the opportunity to get a very huge house i was doing the cases and eventually i made one of my commitments to buy that you probably get about five hundred thousand or six hundred thousand so solicitor and client that is an example so you have to reward that doctor patient quite obvious if you are sick and your doctor said that okay i'm doing a treatment for you become fine but you see that your house over there i've always been interested if you don't mind i would like to buy it how much is it going and said oh doc uh one million ganache cities oh can't you do anything about it but because you're my doctor so you can take 500 000. so let's suppose that it was ordinary person who was buying it i'm sure the person who have insisted one million would be more than that isn't it so that is the kind of thing religious advisor and disciple or follower your pastor your pastor says that he doesn't need to ask you to say that you are saying something about you it's enough for your person to believe that you buy something and you'll not be able to let's suppose that we have some of these big persons like duncan williamson [Music] arms length but you see the case of baffle and baffle type you know it takes care of intention to greatly govern relation and that is why it's not necessary here so you can if there's a you know if there's a contract between life you take a merit and merit will you say that by on the influence we say that why why not okay so okay that is fine okay we have a few minutes so let's uh wind up then we also have presume influence which we'll be talking about what are the uh example uh of what we've been talking about the situation of resume in uh on doing fluent so look at the case of the credit uh learners bank against uh batch now presume undue influence otherwise say presumed meaning that there's a presumption there's a suspicion it's not actual the different actual means that the undue influence has actually crystallized that the contract was actually affected by undue influence but the presumed one it is there's a irreversible presumption there is that suspicion that because of the relationship the two parties are not likely to have dealt at amsolence and once superior position might have way on the mind of the weaker part so that the weaker party might not have been able to negotiate as a world we're not saying that that's what happened but that suspicion is what is aroused and that's why we say they presume undue influence now how do you demonstrate that the presumption of undue influence should be roboted in other words despite the fact that the contract which took place can come within any of the categories of using that we have mentioned and yet it was not affected by the relationship it was not affected by their undue world influence so to rebut the undue influence and that the burden of proof will be upon the stronger party it wasn't like the burden of producing who bears a responsibility to show that there was no undue influence at work it would be on the person who is presumed to be the the dominant party so that party would need to do the following to rebut the presumption one you need to show that full disclosure of all material fact was before the contract was made all information which would enable the other party to understand what was taking place were made available two that the consideration was adequate if we look at the consideration provided is not different what usually takes place uh with respect to that type of contract between other people so that i have not taken advantage of the person i have not exploited my position to that person's detriment and then three the weaker party was in receipt of the independent legal advice if you can show that the weaker party obtained independent legal advice so that despite the fact that uh there was a relationship of uh on the influence then you can escape from the effect of that uh presumption yes that the recovery has received of the advice because let's take let's take for example like the the banks right and it happens all the time in case of the bankruptcy bank [Music] somebody is coming to uh and things like that and if the person you can say that that relationship does not affect the transaction and if nothing at all the person was able to get his own independently ahead before committing himself or himself to their transaction and then some of your colleagues would like to ask a question let's see what they are talking about is that i shouldn't move away prince latin oh sorry okay i'll move away again okay because the mic is not there i understand yes yes okay no i'm not even uh let's land and let me just unsign that what we put over there they are not exhaustive in other words it's not like a close uh yes yes you can put a husband and wife there's nothing wrong there's a what you call like the presume on the world if by some that there's a a a cantaveli induction we take care of that that is why it's not like a big deal because already there's a presumption that between husband and wife there's no intention to clearly guard relation in other words it is not intended that there's a valid contract the binding conduct between so there's no binding contract between them then the question of whether someone freely consented or did not consent is not an issue and that is why is not a prominent example because the law is saying that between husband and wife there is no intention to create regulation and what that means practically is that the lord did not recognize whatever they thought was contract if the lord doesn't recognize that generally speaking then there'll be no issue as to whether one person did not freely consent or whether the relationship between them actually clouded the judgment of the of the of the parties as it were so some the child in the parent yes so as i said the same the same thing the same analysis will hold good but all those things that we have said don't forget the exception so if they have been listened they are listed for the purposes of the reception husband and wife we have an exception like their merit and married type of them where their marriage is not there no that isn't it so even a parent and a child there could be an exception it doesn't mean that there can never be intention of a legal relationship between them depending see one thing we should note is that some of these presumptions are just rules of thumb they are not sacrosanct or they are not iron cast meaning that it doesn't mean that all the time they are applicable if you read the authorities in terms of intention to create regardless what matters is the intention of the parties an intention of the parties as can be construed from the agreement as you can infer it from the agreement that they have made that is what is more determinative as whether there is an intention to create the coalition where there is no intention but the case law that will recite are just illustrative of some of the instances in which the court had actually come but it doesn't mean that they have a medical effect what is important is for the substance of the transaction itself to be scrutinized to be examined for the court to know what you consider the merits of the transaction itself can we see that the parties for example have intention that's rebinding or should not be worth should not be binding so you may want to look at the face of the williams against bailey a sound fault is further similar i'm promising note and may none of you here ever do that to force your furthest signature that is a big thing isn't it now so there was a case of audrey and the sun did not deny and the bank bankers arranged a meeting with the father and it would reveal threats to the fact that if some settlement some amicable resolution was not made the sound would be prescripted because the son had admitted that yes he did the phone did i afford them for the signature and then the bank was saying okay if that is so then i agreed to this otherwise you prosecute your son for forging the father there upon has acquitted an agreement to make an equitable mortgage of his property and the fourth promissory nurse will return to him so the promised land not what the the son had forged were giving back to the father so they could not be used against him but the bank did not agree until the father had mortgaged his his property and eventually when the mata came to court the court held that the agreement was not valid as in the circumstances the father could not be said to have entered into it freely and voluntarily as it were now where there is a special relationship between the parties then to the defendant or the dominant party to reverse the presumption of undue influence as we have been discussing so see the case of a lancaster limited against the black just as the case the more popular case of the west bank limited against a bandit where an elderly farmer inexperienced in business matters mortgaged his home and only answered to the bank to guarantee his son's business overdrafts i the english club appeal eventually set aside the guarantee and the charge their own because the farmer had placed himself in the hands of the bank and i looked to the assistant bank manager for advice that's very similar to uh backlash banks and the open admits in the in the report yeah so as i said uh barclays bank and old brand we actually use this case against this ban what is the name we use it successfully to help a woman to escape some of these troubles by some of this band if i remember the name of the bank i will give it to you i also like to read the judgment very nice judgment so backlash bank agrees o'brien mr o'brien was a shareholder in a company and arranged an overdraft company with the company's bank on basis that mr o'brien will guarantee the company's indebtedness and that will be secured by a second chart over the matrimonial home which was currently owned by the husband and wife and before i move on if you look at the new legislation on land the land acts there's a requirement that where we are going to use a matrimonial property for loan there should be one rating consent and of course the banks and those in the financial institution it is food for you to make sure that you don't deal with one married partner without the knowledge concerned and involvement of the other otherwise when there is a default the person the other part will go to court and as we as i speak now we're encouraged in uh umb um some huge that almost 40 million ghana cities and they have used the umb saying that my client used a number of his properties to secure the debt and the wife is saying that she doesn't know anything about it and that is that the truth and the wife has also gone for a lawyer to seal that whatever has gone on between the husband and his company and the using property that they have jointly acquired since getting married were used unilaterally by the husband that is a knowledge without her consent without a concurrence so that is very serious and that is consistent with the reasoning barclays bank and oberon sorry yeah so though the manager gave instruction that both husband and wife should be made aware of the nature and effect of the documents they were signing and should be advised to take independent advice the bank staff had not followed those instructions you know sometimes the banks have they are in hurry to do their own thing that's that's more small benefits all are there small benefits rather they are in desperate uh quest to meet their targets maybe they are giving targets isn't it and so they throw questions to their yes so mr o'brien signed their child document at the bank that within it now when the company's indebtedness exceeded the agreed overdrafts the bank brought proceedings to enforce that guarantee mr o'brien refused to leave the house claiming that uh mrs obrad refused to leave the house claiming that she had signed the child document because of her husband's undue influence so we see their husband and wife thing and that he had misrepresented the nature of the document so that she thought she was signing a charge up to only 60 000 pounds when in fact the charge was 185 000 pounds so the english house of laws now the supreme court came to conclusion that the bank must have known that there was a strong possibility that undue influence might have been brought upon mrs o'brien to sign and they should have acquainted her with the full facts in a private interview with that the presence of a husband and she have recommended that she take separate legal advice and the bank's request for possession of the property was eventually what dismissed so despite the fact that the undo influence involved a third party the court was prepared to so backlash bank and no oblige teaches important lessons regarding yeah so of course the situation of actual undue influence actual new influence has the term tells us where there has been a natural incidence of vote on the influence and that one you have to establish it by evidence so a natural undue influence the reverse burden of proof it is not there there's nothing like a as a strong or a dominant party the one who is claiming or the one who is alleging that the contract was vitiated by the influence in reality he or she will have to abuse the requisite burden to persuade the court the contract could not have made but for that undue influence or it was one of the the important factors which exercise that person judgment so the person alleging the actual new influence best the bedding of proof so when he has established that that prima facie case or establish a case of actual then there'll be a reversal of that burden on the other party the supposed dominant party who is supposed to have brought on the influence actually to bear on the weaker party so that is how it works for us in the case of presumed undue influence the initial burden is on the the dominant part and then when the dominant party has been able to demonstrate that despite the existence of this relationship it never affected the genuineness of the transaction now i want a sincere declaration are you having a class after this your response was very weak yeah okay say no okay so uh please we we have another class uh of course mr uh ezekiel will meet you tomorrow and uh [Music] the discussion uh will be concluded now next uh adding over there on friday right on friday we in the evening there be a zoom class whether you have a class or not we do it because we'll be recording if you miss it you can play the recording on on on saturday or sunday saturday sunday there will be another class so the idea is that by next week we should finish and i'm going to send you please class reps i need the groups i'm going to send you a set of questions each group will do one and they are due for submission uh before we end the there'll be a there is going to be a seminar especially a seminar and the questions are meant lessons the questions are meant to be a general revision of all that we've done in the semester so that is idea so we take them serious all right exactly anything our case all right yes yes uh so we are ending that because we've entered the classroom one we have to go off so have a very good night and then we put in the link on the class platform okay thank you bye