On Undue Influence

The party's real declaration of will is the essential of the validity of the contract in all country. The untrue declaration of will or the qualification of the express of will would influence on the effect of contract. In generally, error , fraud, 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, and it aims to give remedy to the party who has been damaged because of the other party's undue persuasion.There are three parts in this in this paper. Chapter one of this article describes concisely the origin, definition and institutional value of the system of undue influence. It 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. It evolves from the remedying parochialism of traditional duress in the equity court. The side impacted by undue influence has independent right of concluding contract, and has choosing freely right of concluding contract. Because of the spirit or morality pressure that the opposing party put, the will of the party appear some deflection and conclude the contract that can't do in freely state at any time. The deflection is outcome that other intervene. Undue influence ascribes unfree expressing in nature, and it is independent to the qualification of the express of will, such as error , fraud, duress, great unbalanced. Considering the contract of undue influence is a violable contract and the right of rescission belong to sufferer , but the right of rescission of sufferer is also unlimited, it is limited by the right of third side that has contract of period of immunity, and when sufferer affirms the contract, it can't have right of rescission. Undue influence just embody freedom of contract and justice of contract.The principle of free contract, which is one of three principles of civil law in nineteenth century, provides extensive opportunities for individual persons to exploit their own rights. In line with the principle, everybody could make a legal relationship with anyone else at his/her free will; he/she could freely decide to make whatever contract with whoever person without restraint. One side contractual freedom can make the party to pursuit the legal effect that he/she wants, which is to say if the party want the legal effect that he/she pursuit, he/she must make the real declaration of will, the system of undue influence give the right of rescission to the people who under the undue influence. The other side ,there is no freedom that unlimited. The limited of freedom is making the room of freedom. The nature of undue influence aims at the foundation of freedom of contract. By given right of one side rescission to the party who trust the will of the other party to force the party who makes the will from the position of an honest businessman.Chapter three of the article analyzes the requirements of the system of undue influence. It prescribes particularly in contract of the U.K. and the U.S. They are dissimilar certainly. It represents mainly in classify of undue influenced led to have difference in affirmative way and the burden of persuasion. There are two basic kinds of undue influence: presumed undue influence and actual undue influence. 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. Actual undue influence is that the party imposes undue influence on the other party practically. The party doesn't have confidential relationships with the other party, can but the claimed party of undue influence provides proof to court. It proves that it has suffered undue influence and accordingly requests to withdraw contract. Presumption of undue influence is that owing to special fiduciary relationship of the two parties, and the court assume the party that is in inferior position or believe in the other party suffering undue influence from the other party. The court of the Unite State adopts impersonal way to cognize undue influence. It requires the party suffering undue influence provide correlative proof and come down to four aspect 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 prove, it also can prove abecedarian the existence of undue influence. So above say, whether in the U.K. or in the U.S., categories of undue influence emphasize confidential relationships of the two parties.Chapter three focuses on the significance of the system of undue influence in Anglo-American law to Chinese civil law. First, discusses the difference between undue influence and the systems of defenses in Chinese law, which shows that it is valuable to establish the system of undue influence in China. Second, we think that it is Chinese present situation that is essential for us to borrow and establish the system of undue influence of common law. Finally, the author discusses that there is some room for undue influence to exist in China.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 have great value of theory and practice. Undue influence can maintenance the freedom and justice of the contract, but it also injury the safe of bargaining on some degree, so we must limit it. Undue influence should be put in our civil law in future, but we should not copy word for word simply. We must do so by absorbing the reasonable element of undue influence into our unfairness system to assort with flaw declaration of will.