Thus, it has been held that a note given, or money paid, to obtain a release of goods from an attachment fraudulently obtained may be avoided or recovered back,46 or where money has been paid to prevent seizure of property under an illegal tax or assessment.47 Any threats of injury or withholding of property which are sufficient in apprehension or severity to overcome the mind and will of a person of ordinary firmness will be held duress if inducing a contract.

UNDUE INFLUENCE

Undue influence is closely akin to fraud, but differs from it in several respects. Fraud is not presumed and arises only from definite, false, and fraudulent statements. Undue influence will be inferred where the peculiar relations and circumstances of the contracting parties show that the will of one party dominated the will of the other. This presumption of undue influence-that an unfair advantage has been taken of the promisor-arises where there are family or confidential relations between the parties, where the promisor is mentally weak as compared with the other party, or where one has taken unfair advantage of the distress or necessities of the other.

Where a contract is

§75. Under Family Relations. made between a husband and wife, or between a parent and child, the burden of proof that the transaction was fair is upon the stronger party. Thus, a gift or conveyance from a wife to her husband, or from a minor child to a parent, is regarded with suspicion, and the same is true of a gift or conveyance from an infirm parent to an adult child. The law as to what influence may or may not lawfully be exercised between persons in such relations, is stated by the Supreme Court of Michigan as follows:

"Influence obtained by modest persuasion and arguments addressed to the understanding, or by mere appeals to the affections, cannot properly be termed undue influence in a legal sense; but influence obtained by flattery, importunity, 46 Chandler v. Sanger, 114 Mass. 364, 19 Am. Rep. 367.

47 Bruecher v. Village of Port Chester, 101 N. Y. 240, 4 N. E. 272.

superiority of will, mind, or character, or by what art soever that human thought, ingenuity, or cunning may employ, which would give dominion over the will of the testator to such an extent as to destroy the free agency, or constrain him to do against his will what he is unable to refuse, is such an influence as the law condemns as undue.''48

The presumption extends also to persons in loco parentis, whether in fact parent and child or not.

§ 76. Fiduciary Relations. The presumption of undue influence extends to all transactions where "one party is so situated as to exercise a controlling influence over the will and conduct and interests of another."49 Thus, transactions between guardian and ward, trustee and cestui que trust, attorney and client, a person and his spiritual adviser, are presumed to have been procured through undue influence, and the burden of proving their fairness is upon the one procuring the benefit. This is peculiarly true as to transactions between guardian and ward, for a guardian is not supposed to be influenced by those feelings of affection which would check a parent from taking an unfair advantage of his child. The presumption of undue influence does not cease at once upon the termination of the confidential relation, but continues until all control in fact is removed. Thus, transactions made in favor of a guardian or a parent soon after an infant has come of age, are also presumed against.

§ 77. Mental Weakness. The presumption of undue influence will also arise where one party has taken advantage of the mental weakness of the other party. This is peculiarly true where the mind of one party has been so affected by old age, illness, intoxication, or feeble-mindedness as to be unable to resist undue influence.

§ 78. Distress or Necessity. Another class of cases where undue influence is presumed, is found where one takes an unfair advantage of the distress or necessities of the other party. Here the element of personal influence is

48 Schofield v. Walker, 58 Mich. 96, 24 N. W. 624. 49 Sears v. Shafer, 6 N. Y. 268.

absent, as was also true in those cases where advantage was taken of mental weakness. Where a person incumbers himself with heavy liabilities for a small and inadequate present gain, the burden is on the one who was benefited to show the fairness of the transaction. Usury laws in many jurisdictions protect against unconscionable interest rates promised by those in need or distress. Where there are no usury laws, one who is guilty of extortion and unfair dealing is liable to have his agreement set aside and only allowed to recover the amount of money he actually advanced. Mere inadequacy of consideration will not establish fraud or undue influence, but it is an important element entering into these doctrines. Transactions between mortgagors and mortgagees by which the mortgagor releases or transfers to the mortgagee the equity of redemption, and conveyances by heirs or devisees of their future interests, are regarded with much suspicion by the courts and furnish many of the cases where the doctrines of undue influence are applied.

LAW OF CONTRACT

PART II

CHAPTER VI

LEGALITY OF OBJECT

The only remaining element necessary to the formation of a valid contract is that the object of the agreement be legal. The law will not enforce an agreement which has an illegal object, even though all the other elements of consideration, form, consent, and competent parties be present, because it is deemed that the welfare of the community at large would be harmed by its enforcement. The object of a contract may be illegal because in violation of (1) a statute; (2) the common law; (3) public policy. Because of the great number of modern statutes which are merely declaratory of the common law or expressive of certain applications of the principles of public policy, it follows that the above classification is principally for convenience, and a certain illegal object may be classified in different States under any one of the above classifications.

AGREEMENTS IN VIOLATION OF STATUTE

§ 79. Illegal Object. If a statute expressly prohibits a certain act, it is clear that an agreement involving the commission of that act is illegal. Thus, where a statute prohibited the employment of minors in saloons, a contract for such employment would be illegal and unenforcible. But difficulty arises where the contract is concerned with some act for which only a penalty is provided by statute. The imposition of a penalty is prima facie but not conclusive evidence that the legislature intended to prohibit

Copyright, 1912, by American School of Correspondence.

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