Introduction Both doctrines of unconscionable and undue influence are intended to attain fairness between parties which provide remedies to overcome the consequence of unfairness transactions. In spite of that, various problems occur from the transaction and relevant to both doctrines. Many judges and lawyers seem to confused by the concept of unconsionability and undue influence during their application of these doctrines of transactional fairness. Undue Influence Undue influence is the unconscientiously use of power, influence, position or knowledge by one person over another to enter into a contract. As a consequence, the weaker party will dominant by the stronger party to secure a benefit either for herself or for some other person. In the Malaysia context, section 16 of the Contract Act 1950 defined undue influence concept. Unconsionability Unconscionability has been defined as “the absence of a meaningful choice on the part of one party together with contract terms that are unreasonably favourable to the other party.” Basically, unconsionabiliy is a stronger party enter into a ...
d by agreement in the court of appeals. By applying principles to the conflicting laws, the judge is able to make the greatest social advancements by both punishing for actions causing harm and also giving hint that his honest intentions did not go unnoticed and such intentions should be upheld in society. Looking at the case R.V.Machekequonabe, it is a prime example of conflicting rules. It is always difficult to decide which rule should be followed and which should be rejected, especially in cases where cultural upbringing plays such a major role.
The first model to the judicial decision making is the attitudinal model. This model of judicial decision making speculates that a judge’s behavior can be predicted mostly by his or her policy attitudes. It perceives judges of the court as motivated by policy goals and unconstrained by the law. Therefore, they decide cases according to moral preference rather than by the meaning or intention of legal texts. One review of the attitudinal model is the fact it relied heavily on unreliable evidence. Also, the attitudinal model of decision making does not always interpret from explaining justice’s decisions at the Supreme Court. Most legal practitioners such as lawyers and judges are likely to think that a very simple attitudinal model is missing
The law is seen in two ways; as being fair, neutral and having an unbiased arbitrator,
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Before we consider specific situations, it is important to understand fully the stance of non-consequentialism and consequentialism. Non-consequentialism suggests that there are certain actions that are inherently wrong, and should always be prohibited, regardless of situational consequences. These prohibitions take the form of uncompromising rules, such as ‘do not steal’, ‘do not lie’, ‘do not break promises’ and ‘do not murder innocent people’. I will refer to this set of rules as principles.
In addition to the ratio above, improper pressure cannot be used to create the promise of extra money . Bob had put improper pressure on Fred. He had threatened Fred that he will not deliver the goods unless the $2,000 is paid. For this reason, the decision in Williams v. Roffey Brothers (1990) cannot be applied to this case since there is evidence of improper pressure on the part of Bob. As a result, Bob’s use of improper pressure on Fred has overridden the mutual exchange of benefits and the outcome of this case will not be the same as the decision made in Williams v. Roffey Brothers (1990).
Unilateral – some offers are purely one sided, made without the offeror’s having any idea whether they will ever be taken up and accepted, and thereby be transformed into a contract. For example when an advertisement where a person is rewarding another one if he finds his pet (which was lost). In this case the person who is making such an offer is not sure whether this offer will be ever accepted.
Promissory estoppel is a relatively new development to contract law but it is important doctrine where a non-contractual promise lacking consideration provided...
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
The lack of independent advice makes the enforcement of the transaction unconscionable, even if there is no actual undue influence.
In English Law consideration is one of the three main areas of an enforceable contract. It may be defined as an act, forbearance or promise made by a single party that constitutes the price for which the promise of another, is bought. In simple terms, the basic understanding of consideration may be seen as a ‘give and take’ tactic between two parties.
Countless versions and cases of judicial discretion have emerged over the years of the judicial system. However, the case of general judicial discretion exists as the category that ends up mistreating many citizens in the U.S. The court system defines judicial discretion as “the inherent power of the judiciary to make legal decisions according to their discretion” (“Dictionary”). This simply means that a judge may adjudicate a case in his courtroom as long as the sentence he gives is within reason (“Dictionary). However, many judges take this out of context and use it to their malicious advantage. The judge can dismiss or overrule a jury if he believes that a stricter, or lighter sentence in necessary. He may choose not only the guilt of the criminal, but he also may decide how long they deserve to be in prison. Many more cases have emerged where judges have given too light o...
To summarise, this essay has shown that the concept of impartiality is a relationship between a moral agent and a particular group. It requires that one be not influenced by which member of the group is benefited or harmed by his or her actions. Moreover, it has also shown that impartiality is a necessary condition for the ethical theories of utilitarianism and deontology. Such theories, however, cannot account for human intuition that suggests that it is acceptable to be partial in some circumstances. Finally, this essay has shown that the conflict between partiality and impartiality has not been resolved. As such, the request to be impartial with regard to morality does demand too much.
Power is defined in the course study notes as the “ability of individuals or groups to get what they want despite the opposition”. Power is derived from a variety of sources including knowledge, experience and environmental uncertainties (Denhardt et al, 2001). It is also important to recognize that power is specific to each situation. Individuals or groups that may be entirely powerful in one situation may find themselves with little or no power in another. The county Registrar of Voters, who is my boss, is a perfect example. In running the local elections office, she can exercise the ultimate power. However, in a situation where she attempted to get the county selected for a desirable, statewide pilot project, she was powerless, completely at the mercy of the Secretary of State. Power is difficult to measure and even to recognize, yet it plays a major role in explaining authority. In organizations, power is most likely exercised in situations where “the stakes are high, resources are limited, and goals and processes are unclear” (Denhardt et al, 2001). The absence of power in organizations forces us to rely on soley hierarchical authority.