instrument which is void both at law and in equity, and one which is voidable in equity (p. 108): "It is true, it is charged in the Bill that this Deed was obtained by Fraud and Surprize . But whosoever reads over the Depositions will see that the End they aimed at was to attack the Deeds themselves as false Deeds and not truly executed; but that being Tried at Law, and the Will and Deeds verified by a Verdict, the Counsel have attempted to make use of the same Evidence, and read it all, or at least the greatest Part of it, as Evidence of Surprize and Circumvention . . "Now, for this word (Surprize) it is a Word of a general Signification, so general and so uncertain, that it is impossible to fix it; a Man is surpriz'd in every rash and indiscreet Action, or whatsoever is not done with so much Judgment and Consideration as it ought to be : But I suppose the Gentlemen who use that Word in this Case mean such Surprize as is attended and accompanied with Fraud and Circumvention; such a Surprize indeed may be a good ground to set aside a Deed so obtain'd in Equity and hath been so in all times; but any other Surprize never was, and I hope never will be, because it will introduce such a wild Uncertainty in the Decrees and Judgments of the Court, as will be of greater Consequence than the Relief in any Case will answer for." doctrine of consi Moreover the doctrine thus stated is exactly analogous Analogy to to that which we have seen to be undoubted law concern- as to ining inadequacy of consideration. The value of the subject- adequacy matter of a contract, and therefore the adequacy of the deration. consideration, which depends on it, is surely in most cases easier to measure than the degree of deliberation or prudence with which the contract was entered into. It can hardly be contended on principle that "surprise" or “improvidence," which in fact represent nothing but an opinion of the general character of a transaction, founded on a precarious estimate of average human conduct, ought to have a greater legal effect than inadequacy of consideration, which generally admits of being determined by reference to the market value of the object at the date of the contract. 5. Limits of the right of rescission. of rescis. The right of setting aside a contract or transfer of pro- The right perty voidable on the ground of undue influence is analogous sion is like that in cases of fraud, &c. and governed by same rules. Examples. Jurisdic tion not of actual party to the contract. to the right of rescinding a transaction voidable on any other ground, and follows the same rules with some slight modifications in detail. What is said in the last chapter of rescinding contracts for fraud or misrepresentation may be taken as generally applicable here. We proceed to give some examples of the special application of the principles. The right to set aside a gift or beneficial contract voidable for undue influence may be exercised by the donor's representatives or successors in title (a) as well as by himself, and against not only the donee but persons claiming through him (b) otherwise than as purchasers for value without notice (c). But the jurisdiction is not exercised at the suit of third persons. The Court will not refuse, for example, to pay a fund, at the request of a petitioner entitled thereto, to the trustees of a deed of gift previously executed by the petitioner, because third parties suggest that the gift was not freely made (d). On the other hand it is not necessary to the support of confined to a claim to set aside a contract on the ground of undue influence influence to show that the influence was directly employed by another contracting party. It is enough to show that it was employed by someone who expected to derive benefit from the transaction, and with the knowledge of the other party or under circumstances sufficient to give him notice. of it. The most frequent case is that of an ancestor or other person in loco parentis inducing a descendant, &c., to give security for a debt of the ancestor. But if the other party does all he reasonably can to guard against undue influence being exerted (as by insisting on the person in a dependent position having independent professional advice), and the precautions he demands are (a) Eg. Executor : Hunter V. Atkins, 3 M. & K. 113; Coutts v. Acworth, 8 Eq. 558. Assignee in bankruptcy Ford v. Olden, 3 Eq. 461. Devisee: Gresley v. Mousley, 4 De G. and J. 78. Heir: Holman v. Loynes, 4 D. M. G. 270. (b) Huguenin v. Baseley, 14 Ves. 273, 289. Cp. Molony v. Kernan, 2 Dr. & W. 31, 40. (c) Cobbett v. Brock, 20 Beav. 524, 528. (d) Metcalfe's tr. 2 D. J. S. 122. satisfied in a manner he cannot object to at the time, the contract cannot as against him be impeached (a). It appears to be at least doubtful whether a contract can be set aside on the ground of influence exerted on one of the parties by a stranger to the contract who did not expect to derive any benefit from it (b): except where the contract is an arrangement between cestuis que trust claiming under the same disposition, and the trustee puts pressure on one of the parties to make concessions; the ground in this case being the breach of a trustee's special duty to act impartially (c). tion and The right to set aside a contract originally voidable on Confirmathe ground of undue influence may be lost by express acquiesconfirmation (d) or by delay amounting to proof of acqui- cence. escence (e). But any subsequent confirmation will be inoperative if made in the same absence of independent advice and assistance which vitiated the transaction in the beginning (ƒ). This has been strongly stated in the judgment of the Lords Justices in Moxon v. Payne (g): "Frauds or impositions of the kind practised in this case cannot be condoned; the right to property acquired by such means cannot be confirmed in this Court unless there be full knowledge of all the facts, full knowledge of the equitable rights arising out of those facts, and an absolute release from the undue influence by means of which the frauds were practised. To make a confirmation or compromise. of any value in this Court the parties must be at arm's length, on equal terms, with equal knowledge, and with sufficient advice and protection." If it is made without (a) Compare Cobbett v. Brock, 20 Beav. 524, with Berdoe v. Dawson, 34 Beav. 603. As to what amounts to notice, Maitland v. Backhouse, 16 Sim. 58; Tottenham v. Green, 32 L. J. Ch. 201. (b) Bentley v. Mackay, 31 Beav. 143, 151. On principle the answer should clearly be in the negative. (c) Ellis v. Barker, 7 Ch. 104. (d) Stump v. Gaby, 2 D. M. G. 623; Morse v. Royal, 12 Ves. 355. (e) Wright v. Vanderplank, 8 D. M. G. 133, 147; Turner v. Collins, 7 Ch. 329. (f) Savery v. King, 5 H. L. C. at p. 664. (g) 8 Ch. 881, 885. And a confirmation will not be helped by the presence of an independent adviser of the party confirming, if, in consequence of the continuing influence of the other party, his advice is in fact disregarded: ib. Semble, where the knowledge of the invalidity of the original transaction it An adoption of the instrument impeached for a particular purpose (as by the exercise of a power contained in it) may operate as an absolute confirmation of the whole (d). It seems that the presumption of influence arising from confidential relations is not to be extended to cases where a merely trifling benefit is conferred (e). This is more than a simple application of the maxim De minimis non curat lex, for the transaction brought in question might be in itself of great magnitude and importance, though the advantage gained by one party over the other were not large. Indeed the case to which this principle seems most likely to be applicable is that of a transaction not of a commercial nature, and on such a scale that the parties, dealing fairly and deliberately, might choose not to be curious in weighing a comparatively small balance of profit or loss. (a) Kempson v. Ashbce, 10 Ch. 15. (b) Morse v. Royal, 12 Ves. at p. 374. (c) Gresley v. Mousley, 4 De G. & J. 78, 96. But even in a case between solicitor and client a delay of eighteen years has been held fatal: Champion v. Rigby, 1 Russ. & M. 539. (d) Jarratt v. Aldam, 9 Eq. 463. (e) Per Turner, L. J. Rhodes v. Bate, 1 Ch. at p. 258. CHAPTER XII. AGREEMENTS OF IMPERFECT OBLIGATION. UNDER this head we propose to deal with topics of a Nature of imperfect miscellaneous kind as regards their subject-matter, and obligaforming anomalies in the general law of contract, but tions. presenting in those anomalies some remarkable uniformities and analogies of their own which, so far as we know, have not hitherto been brought into a single view. Between contracts which can be actively.enforced by the persons entitled to the benefit of them, and agreements or promises which are not recognized as having any legal effect at all, there is another class of agreements which though they confer no right of action are yet recognized by the law for other purposes. These may be called agreements of imperfect obligation. Some writers (as Pothier) speak of imperfect obligations in the sense of purely moral duties which are wholly without the scope of law and what we here call Imperfect Obligations are in the civil law technically called Natural Obligations. But this term, the use of which in Roman law is intimately connected with the distinction between ius civile and ius gentium (a), would in English be inappropriate and possibly misleading. duced. Where there is a perfect obligation, there is a right How procoupled with a remedy, i.e. an appropriate process of law (a) Savigny, Obl. 1. 22, sqq. For a summary statement of the effects of a natural obligation in Roman law see Prof. Muirhead's note on R R |