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Examples.

Jurisdic

tion not

influence

of actual party to the contract.

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 (x) as well as by himself, and against not only the donee but persons claiming through him (y) otherwise than as purchasers for value without notice (≈). 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 (a).

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 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, etc., 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 satisfied in a manner he cannot object to at the time, the contract cannot as against him be impeached ().

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 (c): except where the contract

(x) E.g. 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. & J. 78. Heir: Holman v. Loynes, 4 D. M. G. 270.

(y) Huguenin v. Baseley, 14 Ves. 273, 289. Cp. Molony v. Kernan, 2 Dr. & W. 31, 40.

(=) Cobbett v. Brock, 20 Beay.

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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 (d).

tion and

The right to set aside a contract originally voidable on Confirmathe ground of undue influence may be lost by express acquiconfirmation (e) or by delay amounting to proof of acqui- escence. escence (f). 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 (g). This has been strongly stated in the judgment of the Lords Justices in Moxon v. Payne (h): "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." And delay which can be accounted for as not unreasonable in all the circumstances is no bar to relief (i). In short, an act "the effect of which is to ratify that which in justice ought never to have taken place" ought to stand only upon the clearest evidence (j). The effect of delay on the part of the person seeking relief is also subject to a special limitation. In a case between solicitor and client, or parties standing in any other confidential relation, less weight is given to the lapse of time than is due to it when no such relation subsists (k).

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Semble,

no pre

of undue influence

where the gain is trifling.

In the case of a deliberate confirmation after the relation of influence has ceased to exist, it need not be shown that the donor knew the gift to be voidable(): otherwise where the alleged confirmation is connected with the original transaction and takes place under similar circumstances (m).

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 (n).

It seems that the presumption of influence arising from sumption confidential relations is not to be extended to cases where a merely trifling benefit is conferred (o). 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.

Special questions as to rela

tion of

solicitor

As regards the relation between solicitor and client, it is a question whether there is not an inflexible rule of public policy against the solicitor taking a gift from the and client. client, irrespective of any presumption of influence. Such a rule, if it exists, is outside the law of contract altogether. It would apply only during the actual continuance of the relation and the mere fact that A. has been B.'s solicitor would not raise a presumption against an act of bounty from B. to A. after that relation had been fully determined. But the subject has never been authoritatively discussed, with regard to the supposed distinction, in a Court of Appeal; and existing authorities (p) can hardly be deemed conclusive.

between solicitor and client a delay
of eighteen years has been held
fatal; Champion v. Rigby, 1 Russ.
& M. 539.

(1) Mitchell v. Homfray, C. A., 8
Q. B. D. 587.

(m) Kempson v. Ashbee, 10 Ch. 15. (n) Jarratt v. Aldam, 9 Eq. 463. (0) Per Turner, L. J., Rhodes v. Bate, 1 Ch. at p. 258.

(p) See Morgan v. Minett 6 Ch. D. 638.

CHAPTER XII.

AGREEMENTS OF IMPERFECT OBLIGATION.

UNDER this head we propose to deal with topics of a mis- Nature of cellaneous kind as regards their subject-matter, and forming obligaimperfect anomalies in the general law of contract, but presenting in tions. those anomalies some remarkable uniformities and analogies of their own.

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 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 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 be inappropriate in English.

duced.

Where there is a perfect obligation, there is a right How procoupled with a remedy, i. e. an appropriate process of law by which the authority of a competent court can be set in motion to enforce the right.

Where there is an imperfect obligation, there is a right without a remedy. This is an abnormal state of things, making an exception whenever it occurs to the general 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
Gai. 3. 119 a.

1. Remedy lost

Limita

tion.

expressed in the maxim Ubi ius ibi remedium. And it can be produced only by the operation of some special rule of positive law (6). Such rules may operate in the following ways to produce an imperfect obligation:

1. By way of condition subsequent, taking away a remedy which once existed.

2. By imposing special conditions as precedent to the existence of the remedy.

3. By excluding any remedy altogether.

We shall now endeavour to show what are the effects of an imperfect obligation in these three classes of cases.

1. Under the first head we have to notice the operation Statutes of of the Statutes of Limitation, so far as it illustrates the present subject (c). The statute of limitation of James I. (21 Jac. 1, c. 16, s. 3) enacts that the actions therein enumerated-which, with an exception since repealed, comprise all actions on simple contracts (d)" shall be commenced and sued" within six years after the cause of action, and not after. By the modern statute 3 & 4 Wm. 4, c. 42, s. 3 (e), following the presumption of satisfaction after the lapse of twenty years which already obtained in practice (f), it is actions of covenant or debt

(b) It was once held that a purely moral obligation might give rise to an inchoate right which could be made binding and enforceable by an express promise. And if this were so the statement in the text would not be correct: but the modern authorities disallow such a doctrine. See 2 Wms. Saund. 428; supra, p. 169.

(c) Debts contracted by an infant are often compared to debts barred by the statutes of limitation: and the comparison is just to this extent, that at common law they might be rendered enforceable in much the same manner, and practically the authorities are interchangeable on

enacted that (inter alia) all upon any bond or other

this point. But an infant's contract is in its inception not of imperfect obligation, but simply voidable.

(d) As to the extent to which the statute applies to proceedings in equity see Knox v. Gye, L. R. 5 H. L. 656.

(e) This section is not affected by the Real Property Limitation Act, 1874, except that proceedings to recover rent or money charged on land will have to be taken within 12 years: 37 & 38 Vict. c. 57, ss. 1, 8.

(f) Bac. Abr. 5. 226 (Limitation D. 1); Roddam v. Morley, 1 De G. & J. 17.

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