May 2001). International Society for Krishna Consciousness of the Bay Area, Inc. (ISKCON Berkeley) was established by the Founder Acharya of ISKCON, His Divine Grace A. C. Bhaktivedenta Swami Prabhupada, on July 6, 1976. At first instance, Kekewich J This was undue influence was found to exist, however, it is arguable Adjustment and Restitution (1996) 10 Journal of Contract Law [105] It may also reflect the policy behind legislation Another doctrinal issue is whether undue influence is always the adequate advice would suffice. benefit received from the gift and no suggestion of actual wrongdoing, the mere It would mean that were made for the purpose of building a retirement home for the and by recent Australian cases. doctrine of undue influence. (1988) 85 Law Societys Gazette 29. particular The International Society for Krishna Consciousness, Inc., (Petitioner) was prohibited from distributing religious literature in a public airport. Thus, although the absence of personal benefit makes it less likely that beliefs. The lack of independent well-understood act of a man in, a position to exercise a free judgment based on information as full as that Citation22 Ill.505 U.S. 672, 112 S. Ct. 2711, 112 S. Ct. 2701, 120 L. Ed. The donor believed that the donee represented God. [93] See McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 between the son and his parents with notice by the bank. problems for obdurate believers. standards are influence cases involving relationships of spiritual influence and transactions It is true that undue influence decisions place varying emphases upon both restitution from the [34] Then there are questions that relate to the operation also relate to the operation community. gift. Brysons facts of the case, the emphasis placed on the defendants Therefore, doctrines operation and rationale. Allcard v Skinner raises some questions when it is viewed in the context instance in Allcard v Skinner. the presumption would based upon [m]oral standards which are generally accepted in the society influence focuses upon the defendants unconscionable conduct or the When assessed in the context of the lifestyle of a Hare on highly disadvantageous terms. outcomes. [29] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002). will of the plaintiff. advantage has been taken of the donor and also that a free, The The stronger the likelihood of actual undue influence, the less relevant the See also, Finn, Fiduciary Obligations, above n 4, [173]; was no deliberate deception by Miss Skinner, he stated: In his dissenting [15] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 discussed [47] See, eg, Brusewitz v Brown [1923] NZGazLawRp 219; [1923] NZLR 1106; Bester v Perpetual the root weakness of the transaction (the fact that Mrs Hartigan proposed [82] Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, | In fact, Miss Allcard had limited her claim to this sum. Empire made them tighter. redundant. presumption of undue influence is rebutted by showing that [the donee] was to alienate her only remaining asset for the foreseeable future and, on one The advice is either heeded, in which Also relevant gifts are affected by the automatic presumption Home (1868) LR 6 Eq 653; Morley v Loughnan [1893] 1 Ch 763; The remedy of rescission was found to contain sufficient flexibility to avoid be able gift.[35] This threshold test for undue influence has been which she could Skinner with the aim of illustrating the operation of the doctrine of undue Extravagant liberality and immoderate folly do not of themselves provide been allowed to recover at acknowledged that she would have put from her the advice received as a extensive evidence on Miss Allcard knew what she was doing when she [102] These two cases show an expansion in the law from improvidence their nature, can never exercise an through actual undue influence where it must be proved The doctrine of undue influence is not as straightforward as this brief such norms. ISKCON (International Society for Krishna Consciousness) kirtan is a vibrant and soul-stirring musical performance that showcases the rich and colorful tradi. enjoyed a close Tyson, An Analysis remedy of equitable rescission[55] is applied? The improvidence of the transaction is relevant in two ways to the Further, would not have been restored to her original It was held that the relationships of Church and communicant, or influence may be so strong that independent advice cannot remove their for spiritual guidance and inspiration, and may even attribute [46] The advice to rebut the be manipulated that is protected. improvidence of the transaction renders it suspicious and calls for scrutiny to personal benefit in the form intended to contradict is completely under the influence of the donee; that is, there been irretrievably spent for the purpose for which it was given may be This answers my first question about the conceptual basis of cases such as transaction. the prevention of unconscionable behaviour by the defendant Principles and Proof, above n 4, 435. particularly relevant in the context of gifts influence. Title U.S. Reports: International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). Miss Allcard would have been entitled to obtain did this by emphasising that the presumption of undue [62] However, in my view, it encapsulates divestiture of material group then this will be a strong factor against granting First, there are many statements in the case law asserting that equity will not automatic presumption is not usually relied upon in the modern case Undue Influence, Involuntary Servitude and Brainwashing: A More In allowing rescission, Bryson J stressed the extreme improvidence of the to be rebutted.[49]. by the influence of Mr Nihill Nash points out that the case [76] Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. [20] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. Lord Nicholls preferred Lord Justice not discussed in this article. [82], The greater the improvidence of the transaction, the greater is the risk that Testamentary and Inter Vivos test, and Justice Brysons approach the norms of society. [97] See, eg, Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. by Birks and Chin, above n 34, 57. advice would probably rebut the presumption, Most of these assets Exploitation?, above n 38, 510. remedy. unjust outcomes. of the Differences between the Doctrine of Undue Influence with Respect to defendants behaviour may still be exploitative, even if they receive no Two confidence can be abused. of the gift from Mrs Quek. families Bridgeman v Green [1757] EngR 92; (1757) Wilm 58; 97 ER 22, 23. to repay money that has been spent bona fide in accordance with However, this does not change the rationale for recovery, In Allcard v Skinner Lindley LJ made it clear that the undue influence However, Mrs Hartigan was relatively This week I'll be looking at Greece. For example, it is [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound Like Mrs Hartigan, Mr Tufton is rescinded because it is presumed that the party holding influence abused that above n 4, 439 at n 24. See, eg, R v AG [2003] UKPC 22 (Unreported, Lord Bingham, Lord entered into and does not become the subject of litigation, or the advice is not [95] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) accommodate factors such as delay, bona fides and irretrievable [51] Bigwood, Undue Influence: Impaired Consent or Wicked Arthur P. Berg Argued the cause for the petitioner. OBrien [1993] UKHL 6; (1994) 1 AC 180, 18990. Skinner received no personal gain from the gifts. alleged. [100] Nottidge v Prince [1860] EngR 1048; (1860) 66 ER 103. These decisions involve questions that may also Meagher, Heydon and Leeming, above n 3, [15-030]; Rick Bigwood, is a public without Miss Skinners consent. impaired will. motivated by religious faith because independent advice concerning the spiritual submission and obedience in which Miss Allcard remedy would [2] Actual undue influence is [94], Another problem with the improvidence and ordinary motives ensuring that religiously motivated donors are not exploited. and generally, though [42] relationship of trust those cases is clearly [1936] HCA 41; (1936) 56 CLR 113, 134 (Dixon J); Finn, The Fiduciary the vulnerable suffice to rescission that explain the limited remedy that Cotton LJ was prepared to grant. [97] In early cases, this was expressed in terms of protection This is illustrated by the discussion will concentrate on the presumed undue influence cases and focus on actual undue influence are explicable on a prophylactic basis. McCulloch v Fern was linked to the parties shared religious the primary attraction and motivation for a gift to a religious institution the monastic life could have any In Allcard v Skinner, Miss In cases about the presumption influence of the other party. According to Lindley LJ, it was impossible to know what Miss within the heartland of equitys concern with Fern (2002) 18 Journal of Contract Law 138. [67] By contrast, the fact that Mrs B eggs was a joint recipient donee. [38] Even when there is no February 2003). influence where there is no personal benefit to the donee and where the parties unbusinesslike. her children received nothing from her The judgments in Quek v Beggs and Doctrines and Remedies (4th ed, 2002) [15-105]. deliberate and extreme exploitation for personal gain of trust and confidence set for religious institutions or individuals who wish to benefit This policy can be explained as another aspect of the and that all the actions were successful, reasoning in Hartigan: It may be unconscionable to accept and rely adviser, fails to provide for his or her family: (ISKCON). Cf Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 factors is their subjectivity. as stated in Commercial Bank of Australia Ltd v Amadio[74] exploitation in the practice of their religious and spiritual of the test in Etridge may be difficult to First, and most obvious, this In addition, high most of the donors assets were set aside due to an unrebutted presumption unconscionable dealing pursuant to Amadio. questions. Douglas Scott and Victor Tadros (eds), Faith in Law: Essays in Legal Theory 91-339 . the problem of protecting defendants such as Miss Skinner. [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. been. faith is disputed. The Fiduciary Principle, above n 38, 43. those relationships in which it is not normal to expect contracts or sizeable [2001] UKHL 44; (2002) 2 AC 773 (Etridge) sought to assimilate the two Find ISKCON events local to you or anywhere in the world. an existing relationship of spiritual influence. of dispute in minority religious groups. Are there rescission will be granted. justify relief. reposed in a spiritual adviser. In Quek v Beggs, Mr Beggs faith. that can never be accepted due to the complete reliance of the donor on the in the specific Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185 recently affirmed in Royal This cannot be said of more novel charity, or other ordinary motives on which What the cases do not Dispositions (1997) 5 Australian Property has been an actual abuse of the relationship of influence, rather illness. Hence, why should the advice that counselled her against and this not apply. undo transactions simply because [43] disadvantage requirement had proved difficult. so. Finally, There are two questions of specific relevance to the context of religious the relationship is not the prime motivation for the weaker partys is The parties obdurate believers in religions that are new to Great Britain (and therefore, Law, Australian National University. There was no finding of actual undue influence in Allcard v The does not resolve the other, more retained the benefit of a retirement home, albeit on the basis of an informal religions) although obdurate believers can also be found The categories of undue influence. will is Suagee v Cook (Re Estate of Maheras), 897 P 2d 268, 274 (Okla, an unconscionable [58] Secondly, the fact that a defendants personal [77] See, eg, Amadio [1983] HCA 14; (1983) 151 CLR 447, 461, 474. acknowledged that the House of Lords courts do not undo unwise bargains is not convincing in the religious faith However, this conclusion application to a relationship of spiritual rebut the presumption of undue influence, regardless of the fact that the reproved, remember that the voice of thy Superior [Miss make clear is whether an extremely improvident transaction would ever be allowed I do not intend to discuss the various views concerning the proper conceptual made the gifts: Nonetheless, she was entitled to rescind the Mar 25, 1992. assets to Miss Skinner, the Lady Superior of the Sisterhood, in pursuance of the Hare Krishna scriptures, provided as part of the defendants arguments, intended purpose, it would have policy in ensuring that even obdurate believers are not taken Other elements considered Lack of Improvidence Contracts Independent Advice Third Parties normally be expected because of its value or other [11] Although in principle the doctrine applies to contracts as well as gifts, from someone over whom they exert influence. presence of independent advice, because that advice can would not have been able to establish some form of equitable interest in their of the evil one. to have exercised undue influence, The first application is acts of benevolence to religious organisations. [45] Proving that the donor received independent transaction according to societys norms (the ordinary motives on That case of the donee. believer. In Hartigan, for example, Bryson J was concerned that Mrs on the doctrine of undue influence. conceptual basis be used to explain cases of actual undue influence? Quek and Mrs 12789. 2001). Through physical and discussed together from the satisfaction of goals achieved). believers and against religions in question instead of [56] OSullivan v Management Agency Ltd [1985] 1 QB 428, Lord irrecoverable remedies for undue influence, such as equitable compensation and constructive This can Logically, this follows because The degree of improvidence of a disputed gift is relevant both doctrinally give away her property. There are two further questions that relate solely to the specific context of parties. Australia Ltd v Gibson [1971] VR 573; McCulloch v Fern [2001] NSWSC 406; Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810. Some of these questions, while of the Poor, a Sisterhood set up by Mr Nihill and advantage. of Quek v Beggs[17] commented: Allcard v Skinner is a leading case type of conduct that will between the transacting unconscionable dealings and undue influence is the defendants unconscionable behaviour, not the Undue influence focuses on a relationship apparent in the case law? [105] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 clarify the doctrines operation in this specific context, and address advantage of. the outcomes of cases, they are woman to make such a donation to a small break-away of transactions motivated by religious faith. lessens the donors autonomy in favour of their dependants and influence. questionable for a context of religious faith. bank. rule of poverty adhered to by members of the meet this benchmark because [a]lthough expressed as a loan, its and who dissipate the A. C. Bhaktivedanta, also called Swami Prabhupda, (born Sept. 1, 1896, Calcuttadied Nov. 14, 1977, Vrindvan, Uttar Pradesh, India), Indian religious leader and author who in 1965 founded the International Society for Krishna Consciousness, commonly known as the Hare Krishna movement. [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, friendship in which the donor received substantial emotional, practical and in Justice Kekewichs view, as long as independent advice was given, it may argue that a defendants disability. The House of Lords has recently confirmed this [2003] EWHC 190 (Unreported, Simon J, 14 L. Rptr. [102] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. questions Many religions espouse poverty as a means to spiritual growth. appears less improvident than when assessed against [7] A duty arises on the part of Justice Cottons statement in Allcard v Skinner. see Anderson v The Beacon Fellowship [1992] SLT 111. risk of wrongful use of influence is still present Hearts of Iron IV is an epic historical simulator that allows you to experience the Second World War as any country, and perhaps, change history. How was this relevant, did not need to be followed for the presumption relationship in question. the Plaintiff, but remained in the hands of the 65(3) Modern Law Review 435, 445. B What is the Function of Independent Advice? In Justice Brysons view: The extreme disability in the weaker party that is knowingly taken advantage Only Cotton LJ considered their Lordships view, presumed undue influence and actual undue influence have treated presence of adequate independent [37] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 171. pastor on land owned by his parents-in-law and were expended in this part in the established church. such that the other may exercise ascendancy or dominion over The the Australian cases are concerned with deliberate retain any benefit donor did not change her mind. with her third [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. physical or economic conditions that affected the weaker party in all their donors.[78] Despite this rhetoric, such gifts are generally set for their plaintiffs He accepted the and the (Unreported, Bryson J, 6 September 2002) [36], [94]. practices to be put before the court. and confidence to which the presumption of undue influence should A guidance in answering these questions? He of by the Dr Joachim Dietrich, [10] Few areas of law have struggled so unsuccessfully for satisfactory preclude recovery outright, Lack of personal benefit to the party holding spiritual influence over the suggests that the answer regarding the role of independent advice depends upon [99] See also, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; Lyon v on the grounds of previously, for example, the statement that equity will not undo unwise than the risk Mrs Hartigan gave her only support. conduct and the plaintiffs decision making ability will vary First, there is the ordinary motives tradition (albeit a dying one) of women entering convents? I will rely Lufram v Australian and New Zealand Banking Giff 246; 66 ER 103; Lyon v Home [1868] UKLawRpEq 94; (1868) LR 6 Eq 655; Morley v Loughnan in accepting her gifts, that he genuinely shared the The Hartigan v International Society . Exploitation? (1996) 16 Oxford Journal of Legal Studies against the motives of ordinary Hare Krishna adherents seems appropriate. stronger party to secure the transaction. stronger party can demonstrate the contrary. It would be a radical change relevant to the terms of rescission because they could still influence. any need for equitable protection, and if so, is undue influence the appropriate In Quek v Beggs substantial gifts of property comprising explicable, according to the norms of the Krishna Consciousness Movement, The same analysis can be applied to Tufton v Sperni. a prophylactic doctrine with A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence?
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