through cases, the hardships caused by it to those who would like to
benefit as third parties.- Develop a point of view on the way in which the Act enables most
potential beneficiaries to obtain what they expect. - Consider any problems with the Act, such as how clear the identification
must be.
Question 5The answer to this is based on material used to answer questions 2 and 4,
reworded to answer the question.Chapter 10: Duress and undue influence
Question 1
(a)Introduce undue influence as a vitiating factor which, like duress, deals
with unfair pressure in forming a contract.- Explain that there is not an automatic fiduciary relationship here giving
rise to a presumption of undue influence, but that there may be on the
facts (BCCI v Aboody) or by analogy (Lloyds Bank v Bundy). Consider
the effect of Jake being a director. - Consider whether there has been a manifest disadvantage – National
Westminster Bank v Morgan. - Discuss how Jake would be able to rebut the presumption – Re
Brocklehurst, O’Brien, etc. - Discuss the need to protect an individual in such a situation. (b) Explain
that as an alternative to an action in the civil courts Kevin could us an
alternative method of dispute resolution. - Explain the advantages of conciliation and mediation: speed, low cost,
informality (although they may not achieve the desired outcome). - Explain the advantages of using arbitration: privacy and an enforceable
award.
Question 2- Introduce the idea of duress and undue influence as vitiating factors
which occur when unfair pressure arises in forming a contract. - Explain the original position of the court regarding duress (a narrow
definition not including property) – Skeate v Beale, The Siboen and The
Sibotre. - Consider the need for a reform of this, and explain how it occurred
through case law – The Atlantic Baron, The Universe, Pao On v Lau Yiu
Long (factors which may help identify economic duress mentioned
here – relate these to the question).
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