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What is Undue Influence under Contract Law (with Examples)?

22 Jan 2021

Undue influence is an equitable doctrine in contract law that refers to circumstances in which an individual with more power places improper pressure on the weaker party to induce them into entering a contract against their will. If undue influence is found, this will invalidate the contract, which helps protect freedom of contract. Undue influence is one of the biggest risks during contract formation and negotiation, yet few know what undue influence is, or how to identify it.

This article will provide an overview of undue influence in a contract, bars to the remedy of recission, and how to identify it and take steps to avoid it when you negotiate your next contract.

What is undue influence? 

Undue influence occurs when a person abuses a position of ‘trust and confidence to pressure another party to enter a legally binding contract against their will.

A finding of undue influence requires that there is a relationship where one party is dependent on the other. The person who is depended on must occupy a position of ‘trust and confidence. For undue influence to happen, this position will be abused, resulting in the dependent party being pressured to enter a legally binding contract and subsequently put at a disadvantage.

There are two situations where undue influence may arise:

Special Relationship

Where there is a special relationship between the parties, there is a presumption that the transaction results from undue influence, and the burden of proof is on the person receiving the benefit to rebut the presumption. An important way to rebut undue influence presumes to show that independent advice was taken by the other party out of their own free will.

No Special Relationship

Where no special relationship exists between the parties, the party claiming undue influence has the burden of proving actual undue influence (see below).

There is no fixed list of relationships where undue influence might occur. A finding of undue influence can occur in any relationship, so long as the key legal requirements are present.

When might undue influence occur? 

Undue influence can be exercised to induce the giving of a gift to another. For instance, party A may, through the exercise of undue influence, induce party B to give a gift to party C. Likewise, undue influence can be exercised to induce another party to enter a contract.

Undue influence applies where the person who has allegedly exercised the influence induces another party to enter a contract with himself. For instance, Party A may, through the exercise of undue influence, induce Party B to enter a contract with Party A himself.

Undue influence can also work to induce a person to enter a contract with someone other than the purported influencer. For instance, Party A can, through the exercise of undue influence, induce Party B to enter a contract with Party C.

Where is undue influence particularly prevalent? 

Undue influence is particularly prevalent in the financial sector.

Specifically, it is most common when it comes to mortgages and guarantees . The most common scenario is one where one party, traditionally the husband, influences his wife to enter a guarantee for a loan or mortgage on a home to support his business. The husband then defaults on loan repayments, which results in the wife claiming that the agreement should be rescinded for undue influence.

What are the different types of undue influence?

There are three types of undue influence as recognised in most common law countries:

1. Actual undue influence

2. Presumed undue influence where the presumption is rebuttable

3. Presumed undue influence where the presumption is irrebuttable

We will go into more detail below.

Actual Undue Influence

Actual undue influence refers to cases where the undue influence is obvious and is easy to prove. The purported influencer must fulfil certain criteria:

1. The influencer had the capacity to influence the victim

2. The influencer did in fact influence the victim, and the influence was ‘undue’

3. The influence did in fact induce the transaction

An example of actual undue influence includes one party threatening to end a relationship with the other unless they enter a specified contract. Another example may include one party constantly pestering and threatening to only stop if the other enters a specific transaction.

Presumed undue influence where the presumption is rebuttable  

If the criteria for actual undue influence cannot be proven, the victim may be able to establish a presumption of undue influence. This category varies from actual undue influence in that the victim can just prove that a certain set of circumstances exist, from where undue influence will be inferred . Under this category, a purported victim must prove that the following circumstances exist:

1. The purported victim placed trust and confidence in the other party

2. The transaction entered calls for an explanation

Under the first requirement, that the purported victim must place trust and confidence in the other party; there are many types of relationships have been held to fall into this category: 

1. Husband and Wife

Husband and wife relationships have been treated as one where trust and confidence have been placed by one in the other party. This may still vary from relationship to relationship.

2. Bank and Customer

Relationships between the bank and customers are considered relationships of trust and confidence.  

3. Cohabitees (excluding husband and wife)

Cohabitees in an emotional relationship of some sort with one another have been treated as being in a relationship of trust and confidence. This is the case regardless of marital status.

4. Commanding officer and soldier in the army

Relationships between a soldier and an army officer are treated as relationships of trust and confidence.

Going back to the second requirement, that the transaction entered calls for an explanation - this means that the transaction must appear questionable to the average onlooker, warranting an explanation.

If both requirements are fully proven, to the satisfaction of the courts, it will be presumed that the transaction has been procured by undue influence.

At this stage, the purported influencer will have the opportunity to raise a counterclaim to prove that the transaction was not procured by undue influence. The purported influencer may be able to do this by rebutting the purported victim’s claim of undue influence by proving that there was no relationship of trust and confidence between them. However, if no explanation is provided by the purported influencer to the satisfaction of the courts, then it will continue to be deemed a transaction procured by undue influence.

What constitutes a satisfactory explanation of the transaction will depend on the specific circumstances. Generally, however, the more lop-sided or unequal the transaction, the better the explanation must be before the presumption can be rebutted successfully.

Presumed undue influence with an irrebuttable presumption

Certain relationships are recognised in law as being ‘special’. These relationships are special in the sense that within these relationships, one person having influence over another is common and to be expected.

Thus, unlike the second category, there is no need to prove that a relationship of trust and confidence exists – it is presumed once a particular type of relationship is found to exist. The purported victim will just need to prove that the influence was undue or calls for an explanation.

Examples of the types of relationships that qualify for this presumption of influence include the following:

1. Parent/child

2. Trustee/beneficiary

3. Solicitor/client

4. Medical adviser/patient

Note that a husband-and-wife relationship does not fall on this list.

Three party cases 

Undue influence by a third party can give rise to a claim for undue influence. If successful, the contract between the purported victim and the other will be voidable.

For the contract to be voidable, however, the other party to the contract should be ‘put on inquiry’, which means that the business (the ‘third party’) is under a duty to take reasonable care to protect the victim against undue influence. To fulfil this duty to take reasonable care, they should host a private meeting, away from the suspected influencer. In this meeting, the extent of liability and the risks involved in acting as a guarantee or mortgagor should be touched upon. The purported victim should also be urged to take separate legal advice if possible.

To ensure they will be able to rely on the contract at issue, the business should obtain assurance from the solicitor they have been duly advised in a legal capacity.

When a business is considered to have been ‘put on inquiry’ will depend on the facts of the situation at hand. For banks, however, there is clearer guidance. It will be ‘put on inquiry’ whenever a relationship between guarantor and borrower is non-commercial. If put on inquiry, it has a duty to take reasonable care to protect the person they are contracting with from any undue influence.

How to show that there was no undue influence? How can I protect myself from undue influence? 

Now that you better understand undue influence, you need to know how to proactively avoid transactions marred by undue influence. This might involve taking steps to protect yourself

the next time you get the slightest hint that there might be an undue influence at play.

Once a presumption of undue influence is established by a purported victim, the accused may rebut the presumption of undue influence by proving that the claimant entered the contract freely, out of their own volition.

One of the main ways to prove that a person has agreed freely is by showing that the purported victim got independent advice regarding the transaction in which undue influence is claimed. Usually, the adviser will be a solicitor. This solicitor must be a person who does not have any relationship with the purported influencer.

What happens to a contract if it is found to have been procured by undue influence? 

If a contract is found to have been procured by undue influence, the innocent party will be entitled to the remedy of rescission .

Rescission is where a contract is set aside, and the parties are put back into the position in which they were before the contract was made.

Rescission is different from the termination of a contract. Termination operates prospectively, meaning that when a contract is terminated, the future obligations owed by either party fall away. The contract is brought to an end from the point of termination onwards – so, neither party has to perform any obligations which fall due after the date of termination.

In the case of rescission, it operates both prospectively and retrospectively. It operates prospectively because the parties are not required to perform any obligations as they fall due from the date of recission. It also operates retrospectively the contract is unwinded, where parties are put in the position, they would have been in had the contract not been entered into in the first place.

A finding of undue influence will give the innocent party the right to rescind the contract.

What are the limitations to recission?

The innocent party’s right to rescind is subject to certain ‘bars to rescission’ , which include the following:  

1. Affirmation

Where the victim elects to continue with the agreement despite the undue influence

2. Impossibility of restoring the parties

If it is not possible to put the parties into the position they would have been in if the contract was not entered into in the first place, then, restitution will not be possible. This is usually not an issue for parties, because the courts can usually come up with a money equivalent even if there is no precise restitution

A party who is subject to undue influence will be expected to seek relief within a reasonable period following the end of the undue influence. If this is not done, the right to rescind may be lost.

Please note that this is a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may wish to consult your lawyer.

Pooja Batra

Pooja has more than 8 years of in-house legal experience in large mnc’s. she has advised on a wide range of corporate and commercial matters including drafting, reviewing and negotiating a variety of commercial contracts and other agreements across various business lines. if you would like to become a contributor to docpro, please click the link below:, undue influence, what is undue influence, undue influence in contract law, undue influence in contract, contract law undue influence, guide to undue influence, what is undue influence in contract, legal requirements for finding undue influence, undue influence requirements, requirements for undue influence, requirement for undue influence, relationships of undue influence, undue influence relationships, undue influence vs duress, signs of undue influence, difference between duress and undue influence, elements of undue influence, duress and undue influence, example of undue influence, undue influence elderly, proving undue influence, undue influence cases, undue influence example case, presumption of undue influence, undue influence wills, a contract entered into under undue influence is voidable, duress undue influence, what is voidable contract, voidable contract, difference between void and voidable contract, what is a voidable contract, undue influence and vulnerable adults, undue influence burden of proof, undue influence contracts, undue influence definition law, undue influence define, how to prove undue influence, how is undue influence different from duress, how to win an undue influence case, how hard is it to prove undue influence, undue influence in contract law pdf, undue influence equity, undue influence example, examples of undue influence in families, duress synonym, voidable contract definition law, voidable contract define, undue influence legal definition, undue influence threat, undue influence by third party, undue influence elements, related posts.

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10.2: Duress and Undue Influence

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Learning Objectives

• cognize that if a person makes an agreement under duress (being forced to enter a contract against his or her will), the agreement is void.
• Understand what undue influence is and what the typical circumstances are when it arises to make a contract voidable.

When a person is forced to do something against his or her will, that person is said to have been the victim of duress —compulsion. There are two types of duress: physical duress and duress by improper threat. A contract induced by physical violence is void.

Physical Duress

If a person is forced into entering a contract on threat of physical bodily harm, he or she is the victim of physical duress . It is defined by the Restatement (Second) of Contracts in Section 174: “If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.”

Comment (a) to Section 174 provides in part, “This Section involves an application of that principle to those relatively rare situations in which actual physical force has been used to compel a party to appear to assent to a contract.…The essence of this type of duress is that a party is compelled by physical force to do an act that he has no intention of doing. He is, it is sometimes said, ‘a mere mechanical instrument.’ The result is that there is no contract at all, or a ‘void contract’ as distinguished from a voidable one” (emphasis added).

The Restatement is undoubtedly correct that there are “relatively rare situations in which actual physical force” is used to compel assent to a contract. Extortion is a crime.

Duress by Threat

The second kind of duress is duress by threat ; it is more common than physical duress. Here the perpetrator threatens the victim, who feels there is no reasonable alternative but to assent to the contract. It renders the contract voidable. This rule contains a number of elements.

First, the threat must be improper. Second, there must be no reasonable alternative. If, for example, a supplier threatens to hold up shipment of necessary goods unless the buyer agrees to pay more than the contract price, this would not be duress if the buyer could purchase identical supplies from someone else. Third, the test for inducement is subjective. It does not matter that the person threatened is unusually timid or that a reasonable person would not have felt threatened. The question is whether the threat in fact induced assent by the victim. Such facts as the victim’s belief that the threatener had the ability to carry out the threat and the length of time between the threat and assent are relevant in determining whether the threat did prompt the assent.

There are many types of improper threats that might induce a party to enter into a contract: threats to commit a crime or a tort (e.g., bodily harm or taking of property), to instigate criminal prosecution, to instigate civil proceedings when a threat is made in bad faith, to breach a “duty of good faith and fair dealing under a contract with the recipient,” or to disclose embarrassing details about a person’s private life.

Jack buys a car from a local used-car salesman, Mr. Olson, and the next day realizes he bought a lemon. He threatens to break windows in Olson’s showroom if Olson does not buy the car back for $2,150, the purchase price. Mr. Olson agrees. The agreement is voidable, even though the underlying deal is fair, if Olson feels he has no reasonable alternative and is frightened into agreeing. Suppose Jack knows that Olson has been tampering with his cars’ odometers, a federal offense, and threatens to have Olson prosecuted if he will not repurchase the car. Even though Olson may be guilty, this threat makes the repurchase contract voidable, because it is a misuse for personal ends of a power (to go to the police) given each of us for other purposes. If these threats failed, suppose Jack then tells Olson, “I’m going to haul you into court and sue your pants off.” If Jack means he will sue for his purchase price, this is not an improper threat, because everyone has the right to use the courts to gain what they think is rightfully theirs. But if Jack meant that he would fabricate damages done him by a (falsely) claimed odometer manipulation, that would be an improper threat. Although Olson could defend against the suit, his reputation would suffer in the meantime from his being accused of odometer tampering.

A threat to breach a contract that induces the victim to sign a new contract could be improper. Suppose that as part of the original purchase price, Olson agrees to make all necessary repairs and replace all failed parts for the first ninety days. At the end of one month, the transmission dies, and Jack demands a replacement. Olson refuses to repair the car unless Jack signs a contract agreeing to buy his next car from Olson. Whether this threat is improper depends on whether Jack has a reasonable alternative; if a replacement transmission is readily available and Jack has the funds to pay for it, he might have an alternative in suing Olson in small claims court for the cost. But if Jack needs the car immediately and he is impecunious, then the threat would be improper and the contract voidable. A threat to breach a contract is not necessarily improper, however. It depends on whether the new contract is fair and equitable because of unanticipated circumstances. If, for example, Olson discovers that he must purchase a replacement transmission at three times the anticipated cost, his threat to hold up work unless Jack agrees to pay for it might be reasonable.

Undue Influence

The Restatement of Contracts (Second) characterizes undue influence as “unfair persuasion.”Restatement (Second) of Contracts, Section 177. It is a milder form of duress than physical harm or threats. The unfairness does not lie in any misrepresentation; rather, it occurs when the victim is under the domination of the persuader or is one who, in view of the relationship between them, is warranted in believing that the persuader will act in a manner detrimental to the victim’s welfare if the victim fails to assent. It is the improper use of trust or power to deprive a person of free will and substitute instead another’s objective. Usually the fact pattern involves the victim being isolated from receiving advice except from the persuader. Falling within this rule are situations where, for example, a child takes advantage of an infirm parent, a doctor takes advantage of an ill patient, or a lawyer takes advantage of an unknowledgeable client. If there has been undue influence, the contract is voidable by the party who has been unfairly persuaded. Whether the relationship is one of domination and the persuasion is unfair is a factual question. The answer hinges on a host of variables, including “the unfairness of the resulting bargain, the unavailability of independent advice, and the susceptibility of the person persuaded.”Restatement (Second) of Contracts, Section 177(b). See Section 10.5.1 "Undue Influence" , Hodge v. Shea .

Key Takeaway

A contract induced by physical duress—threat of bodily harm—is void; a contract induced by improper threats—another type of duress—is voidable. Voidable also are contracts induced by undue influence, where a weak will is overborne by a stronger one.

• What are the two types of duress?
• What are the elements necessary to support a claim of undue influence?

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• Financial Crime & Fraud
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What Is Undue Influence? Definition, How It Works, and Examples

Adam Hayes, Ph.D., CFA, is a financial writer with 15+ years Wall Street experience as a derivatives trader. Besides his extensive derivative trading expertise, Adam is an expert in economics and behavioral finance. Adam received his master's in economics from The New School for Social Research and his Ph.D. from the University of Wisconsin-Madison in sociology. He is a CFA charterholder as well as holding FINRA Series 7, 55 & 63 licenses. He currently researches and teaches economic sociology and the social studies of finance at the Hebrew University in Jerusalem.

What Is Undue Influence?

Undue influence occurs when an individual is able to persuade another's decisions due to the relationship between the two parties. Often, one of the parties is in a position of power over the other due to elevated status , higher education, or emotional ties. The more powerful individual uses this advantage to coerce the other individual into making decisions that might not be in their long-term best interest.

Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. This inequity in power between the parties can vitiate one party's consent as they are unable to freely exercise their independent will. In exerting undue influence, the influencing individual is often able to take advantage of the weaker party. In contract law, a party claiming to be the victim of undue influence may be able to void the terms of the agreement .

Key Takeaways

• Undue influence most commonly occurs when a more powerful party exerts its influence over a less powerful party in order to achieve its desired outcome.
• Depending on the measure of influence and if there were any extraneous factors involved, some agreements can be legally voided.
• Undue influence varies widely in size, from the basic favor to multibillion-dollar transactions.

Understanding Undue Influence

Undue influence occurs when an individual is able to use an advantage to coerce another party's decisions. Often, this coercion occurs to the detriment of the weaker party and the gain of the more powerful or influential party. Some relationships, such as one between a patient and a doctor or a parent and a child, are considered to run the risk of undue influence and are legally outlined.

The onus in this type of relationship is on the person with influence to prove that he was not using his position to take advantage of the other party. In other situations, one party, based on previous interactions, can be accused of using the trust of the other party to his advantage.

Example of Undue Influence

For example, Bert is Ernie's therapist. Bert is also involved in a couple of real estate development deals around town. Ernie starts talking to Bert about how he has heard about units for sale in the complex that Bert is invested in developing. Ernie isn't interested and doesn't feel it's appropriate for him to purchase a home at that time, but feels left behind by his friends who are all purchasing units or making other investments in the project.

Bert uses his place of power over Ernie to convince him that it's a good step forward in his life also to make an investment in the project. This is to Ernie's financial detriment, but it increases the value of Bert's investment. Bert has used undue influence.

Undue Influence in Financial Markets

There is a pandemic of undue influence in the financial markets of the world. It can be as simple as leveraging information someone has on someone else in order to induce a sale or purchase, or it can be as complicated as forcing board members to vote a certain way. Having third-party counsel, or a mediator, present when deals or large trades are occurring can help to mitigate instances of undue influence.

Cornell Law School, Legal Information Institute. " Undue Influence ."

Fraser, Ian W. " Ware v. Ware and the Presumption of Undue Influence in Confidential Relationships ." Alaska Law Review , vol. 38, no. 2, pp. 342-343.

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11 Undue Influence: Beyond Impaired Consent and Wrongdoing towards a Relational Analysis

• Published: August 2006
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This chapter represents the first stage in the development of a new theory of undue influence. It argues that any one-dimensional view of undue influence fails and that any credible theory of undue influence must accommodate a multidimensional approach. It addresses the poverty and lack of fit of both the claimant and the defendant-sided accounts of undue influence.

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