The Undue Influence Of Anglo - American Law System

Undue influence is an important kind of defenses of the enforcement of promisein Anglo-American law of contract, and it aims to give remedy to the party who hasbeen damaged because of the other party's undue persuasion.Chapter one of this article describes concisely the origin, definition andinstitutional value of the system of undue influence, so as to obtain a basicunderstanding of this system.Chapter two discusses different categories of undue influence. There are twobasic kinds of undue influence: presumed undue influence and actual undue influence.Presumed undue influence usually happens when there exists some kind of trust ordominant relations between the parties of a transaction, which includes absolutepresumed undue influence and relative presumed undue influence. At the same time,the third party of an transaction can also executes undue influence on the party of thebargain, and the author will discuss the situation separately.Chapter three of the article analyzes the requirements of the system of undueinfluence. Absolute presumed undue influence includes: there exists some kind oftrust or dominant relation recognized by statues or cases;the transaction is manifestlydetrimental to one party. Relative presumed undue influence requires the plaintiff toprove additionally that he has relied on the defendant or the third party of thetransaction when he takes up the bargain. However, the requirements of actual undueinfluence includes: there are relations of trust or dominance between plaintiff anddefendant;the defendant has an undue persuasion;the transaction is concluded underthis undue influence.In the fourth part of the article, the author studies the legal effect of undueinfluence, which is mainly about how to correct the transaction under undue influenceby entitling the plaintiff "right of validating the bargain".Chapter five focuses on the significance of the system of undue influence inAnglo-American law to Chinese civil law. After describing the process of drafting ofChinese Contract Law about undue influence, the author discusses the differencebetween undue influence and the systems of defenses in Chinese law, which showsthat there is some room for undue influence to exist in China. Finally, we think that itis Chinese present situation that is essential for us to borrow and establish the systemof undue influence of common law.The last part of the article is about how to make up for the defects of Chinese lawbecause of lacking of system of undue influence. The author think there are twodifferent methods: one way is to fill up the law holes by analogy and applyingprinciples of Chinese law;the other method is to do so by absorbing the reasonableelement of undue influence into our system of unconsionability, and regulating it inspecial law of special articles of civil code.institutional requirements;value of borrowing...