This assignment will strive to outline points of law including identifying key vitiating factors, including duress and undue influence and illegality as well as forms of discharge of a contract and remedies for that. It will also apply these laws to the cases provided to illustrate the application of these laws. Vitiating factors represent some sort of defect in the formation of the contract. Examples of this are that the contract is based on a mistake or a misrepresentation. Illegality on the other hand, is much more to do with the actual character of the agreement itself. It is of a type that the law frowns upon for some reason, for public policy or for other reasons it is …show more content…
Where a special relationship exists, then an important way in which the presumption of undue influence can be rebutted is to show independent advice was taken by the other party, although all that is necessary is to show that the other party exercised their will freely. Even where a special relationship exists, a transaction will not be set aside unless it is shown to be seriously disadvantageous.
In National Westminster Bank v Morgan 1985, when a couple fell into financial difficulties, the claimants bank made financial arrangements which permitted them to remain in their house. The re-financing transaction secured against the house was arranged by a bank manager who had called at their home. Mrs Morgan had no independent legal advice. When the husband died, the bank obtained a possession order against the house in respect of outstanding debts. Mrs Morgan sought to have the refinancing arrangement set aside, on the ground of undue influence. The action failed, on the ground that the doctrine of undue influence had no place in agreements which did not involve any manifest disadvantage and Mrs Morgan had actually benefited from the transaction by being able to remain in her home for a longer period. However recent cases are beginning to question the requirement of manifest disadvantage before a contract can be