Mortgage Law and the Vitiating Factors - Case Study Example

The circumstance of evidential presumption comes to the fore when there existed a relationship of trust and confidence along with the happening of a transaction that calls for an explanation. These facts need to be proved in order to establish that there is prima facie evidence to claim that the transaction took place under undue influence. "The evidential burden gets shifted to the stronger party to counter the inference that he or she exercised undue influence on the weaker party." 1 Thus the presumption of undue influence is based on two elements; (i) existence of relationship of trust and confidence and (ii) there was entered a transaction that calls for explanation.

There are certain established relationships of trust and confidence like that exists between guardian and ward, parent and child, religious leaders and disciples, doctor and patient and solicitor and client.2 With the proof of the relationship it becomes the legal presumption that there existed a relationship of influence between the parties. The relationship of influence can also be proved by the facts of the case. . It is important that "a relationship of trust and confidence, reliance, dependence or vulnerability on one side and ascendancy, domination or control on the other side".

It needs to be further proved that this relationship has made the vulnerable party agree with the course of action as suggested by the party who was dominant and that the situation was exploited fully to his/her advantage by the dominant party.3 However it is not necessary that there should be a continued existence of the state of dependence for arriving at evidential presumption.4 Therefore the important issue is the use of the influence in an undue manner and not its existence. The abuse of the trust placed by one party on another is considered critical.

When it comes to the question of identifying what types of relationships give rise to trust and confidence it is observed in many of the cases people who are young and impressionable or elderly who are under some amount of physical or mental incapacity are being exploited to be unduly influenced.5 Then come the question of the measure of confidence and trust that needs to be placed on the other person. There are some distinguishing characteristics which decide the measure of trust and confidence like a duty on person A to adviser person B or the dominant position that person A possesses over person B.

The dominant position may be real or potential. It is also observed that in all undue influence cases either of these characteristic features is present. However there cannot be a list of relationship that may give rise to trust and confidence since there are an infinite number of relationships that will result in trust. It is necessary to consider that whether one party has placed sufficient trust and confidence on