Undue Influence Part 2

        Last week, we already had covered for the topic Undue Influence Part 1. So for today i would like to share for the Part 2. It is essential for you guys to remember the two elements need to be proved in order to raise undue influence in a contract pursuant to section 16(1) of Contract Act 1950. In this part 2, I will share about the second element where the wrongdoer use the dominant position to get an unfair advantage in a transaction.

        According to the common law, they use the concept of unconscionable bargain but in our Contract Law we used the term of unfair advantage. This term brings the meaning of there was an unfair outcome for a party which he has right to obtain the benefits under such contract. In other words, even certain conditions in a contract can be said to be unfair for a party, as long as he get what he wants from the contract, it cannot falls under unfair advantage.

For the elements of unfair advantage, we can start to refer with section 16(1) of CA as a provision to prove the element. Section 16(3) of CA provides a rebuttable presumption for defendant. When a plaintiff claim for undue influence after fulfill certain conditions, a defendant also has right to deny it. In this matter , the defendant gain the burden to prove that plaintiff already had an independent legal advice before entered the contract or the contract was entered with free will by plaintiff. However, if defendant fail to rebut, the plaintiff has right to rescind or to affirm a contract pursuant to section 65 of the same Act. This makes a contract become voidable under undue influence which the continuation of such contract falls on the right of the plaintiff .
Besides that, on part of a gift in a transaction, there is no need to prove the elements of unfair advantage because a gift means only one parties give consideration while another is not. It is inherent that it would be an unfair advantage to a side party which is the plaintiff. In shorts, proving unfair advantage is essential to claim under undue influence. When undue influence occurred, a contract become voidable plus a defendant also has their on right to deny that he had fulfill the elements of Undue Influence.
So, that is all for today. I hope you guys can understand my explanation very well since this topic is quite long😄. Stay tuned for my further updates ok😎