On The Undue Influence Rule

In generally, error, fraud, intimidates and duress will lead to the qualification of the express of will, but Undue Influence is an important kind of defenses of the enforcement of promise in Anglo-American law of contract. Undue Influence evolves from the remedying parochialism of traditional duress in the equity court, which is the intimidate theory to the tradition of narrow apply scope of correction, which indicates that the party urged the other party to sign the contract by imposing indirect pressure and induce of undue influence. It doesn't adopt method of direct force, but indirect method of intelligence, psychological and morality ordinarily. Undue Influence is the way fault of express of will , the legal system should provides the way to remedies, but our country current law system can't resolve this problem, so the our country have as to it's carry on the necessity that the system ushers in. here are three parts in this in this paper.Chapter one of this article, we analyses the principles of the Undue Influence rule and describes concisely the origin, definition and law result. Undue Influence can be generalized for that both parties exist certain trust relation or domination relation, but one party abused this kind of relation and exerted influence, usually by the way which adopts to persuade unfairly or exerts stress toward the others and with the result that make person sign contract which he should not agree with. When the party be undue influenced is violated by others, it should be to provide a kind of right with the result of cancelling power to relieve the right of the minority one party concerned, being influenced the party can request a court to cancel that contract. Secondly, this chapter discusses the type of the undue influence. Though in the British and American, the contract law of the two countries all have made undue influence be a concrete provision, but they are different, main performance at to how to be the classification of undue influence up. Now the law and scholar acceptant class is actual pressure and presumption of undue influence in the U.K. The senate of the U.K. class presumption of undue influence in two variety. The one is legally certain produced presumption of undue influence. The second is half presumption of undue influence. There is also a kind of contract moreover outside of the third people exert of the undue influence, this kind of classification which has no value as a typical model, so we don't discuss it. The U.S. contract law with analysis whether satisfies composing important item for main judgment method so there is no kind classification about it. If it is investigated in fact, it should be with British contract law of actual presumption of undue influence homology. The classified dissimilarity causes it affirms a way and offers as proof the dissimilarity of responsibility directly.Chapter two is the analytical legal of the Undue Influence rule, first analyzed British contract law and the U.S. contract law is related together prescriptive of difference also carry on comparison. British contract law because of classifying the kind of the Undue Influence, so constitute in the law up differ from the US. In the U.S., if one wants to sue the other, he will be requested offering proof: there are the trusted or the controlled relationship, and trade to oneself obviously disadvantageous. The half presumption of undue influence needs to offer as proof to exist a certain trusted relationship, there is exist trust towards the two parties and the bargain is obviously disadvantageous towards being subjected to influence square. But be the composing important item of influence is requested :A party concerned exerted to be undue influence, the other party concerned reasonable trust, the U.S. didn't categorize in the judicatory the fulfillment, but ruled important item directly: Make use of a domination a position or make use of the trust position, exert not appropriate persuade. The court of the US adopts impersonal way to cognize undue influence. It requires the party suffering undue influence provide correlative proof and come down to four aspects as follow. Firstly ,it rest with whether the party enduring influence affected easily in mentality ,psychology and health station; secondly, it rest with whether the possibility of influence exist; thirdly, It rest with whether offer fact that indicate employed influence; finally, It rest with whether content of contract have abnormal instance. If the above-mentioned can be proving, it also can prove abecedarian the existence of undue influence. Secondly, this chapter discusses the there are similar to provision in the civil law of nations of continental legal system, there are some civil law of nations of continental legal system doesn't rule "undue influence rule " definitely, doesn't rule as it is the reason that the meaning means to have minor faults, be unequal to have no related perhaps similar of provision, in some civil codes of nations .This explains reality life medium really have be space that influence rule's apply. Just like the"exorbitant profits"rule of Germany , "cool off period" system of EU, in the《French civil code》also have,《Netherlands civil code》with our country the civil law of region in Macau in. Anglo-American law of contract and Continental legal system law of contract all have a solution towards being the undue influence, so our country can consider establishing the undue influence rule.Chapter three is how to inference the Undue Influence rule into our country. First ,we elaborate that the legal theory foundation of the Undue Influence rule and the reasons ,which is the contract can be withdraw, is the freedom of the contract, the justice of the contract and the reciprocity of the contract.. Secondly we discuss that the undue influence is difference from the error , fraud, intimidate ,duress will lead to the qualification of the express of will, get of the conclusion that our country appear law should use it for reference.Chapter four is how to be the undue influence into our country《Contract law》of practice an operation .We discuss the express of the undue inference as the rule, discussed it to apply secondly of contract category: Promise contract, the contract betweens to classes and the controlled relationship and involve the contract of expert's consultation occasionally. The effect ruling finally to undue the exception that the contract can be withdraw and but not when: The party concerned really recognizes to the bargain and can not resist good intentions the third people and influenced party delays his act.The conclusion of this paper is that undue influence as a system which gives remedy to the party who has been damaged, because of the other party's undue persuasion, it has great value of theory and practice. It is because that the Undue influences can maintenance the freedom and justice of the contract.