Contents

ACKNOWLEDGEMENTS

ABBREVIATIONS

TABLE OF CASES

TABLE OF STATUTES

1 Introduction

1.1 Key points and structure

1.2 The general vitiating factors and the importance of understanding the rationale of vitiation

1.3 The importance of comparative analysis

1.4 Why analyse the PICC, PECL, DCFR and US Restatement (Second) of Contracts?

1.5 Voluntariness and the desire to protect the integrity of contractual consent

1.6 Absence and impairment of consent; voidness and voidability

1.7 Absence of consent and the objective principle; impairment of consent and unacceptable conduct

1.8 Voidability as the universal consequence of vitiation?

1.9 How the present law fits my central theory

1.9.1 The first category

English law

The PICC, PECL and DCFR

The US Restatement (Second) of Contracts

1.9.2 The second category

English law

The PICC, PECL and DCFR

The US Restatement (Second) of Contracts

1.10 Conclusion

2 Mental incapacity

2.1 English Law

2.1.1 Introduction

2.1.2 The underlying rationale of vitiation

2.1.3 Conclusion

2.2 The US Restatement (Second) of Contracts

2.2.1 Introduction

2.2.2 The absence of consent

2.2.3 Knowledge/an additional factor to render the absence of consent operative

3 Non est factum in English law

3.1 Introduction

3.2 The underlying rationale of vitiation

3.3 The elements of non est factum

3.3.1 Introduction

3.3.2 Absence of consent: the requisite degree of difference

3.3.3 Carelessness

3.3.4 Weakness

3.3.5 Trickery/unacceptable conduct

3.4 Conclusion

4 Common mistake in English law

4.1 Introduction

4.2 The underlying rationale of vitiation

4.3 Res sua and res extincta

4.4 Mistakes as to "quality"

4.5 The elements of common mistake

4.6 Conclusion

5 Mistake as to identity in English law

5.1 Introduction

5.2 The underlying rationale of vitiation

5.3 The rules of mistake as to identity

5.3.1 The key principle: the importance of identity

5.3.2 Three rules guiding application of the key principle

5.3.3 Summary

5.4 Conclusion

6 Mistake as to terms in English law

6.1 Introduction

6.2 The elements of mistake as to terms

6.3 Conclusion

7 Mutual mistake in English law

8 Mistake under the PICC, PECL, DCFR and US Restatement (Second) of Contracts

8.1 The PICC, PECL and DCFR

8.1.1 Introduction

8.1.2 The absence of consent

8.1.3 The additional factors to render the absence of consent operative

Actual or constructive knowledge of the absence of consent

Inducement of the absence of consent

An absence of consent from the defendant

8.1.4 Carelessness

8.2 The US Restatement (Second) of Contracts

8.2.1 Introduction

8.2.2 The absence of consent

8.2.3 The additional factors to render the absence of consent operative

8.2.4 Carelessness

9 Misrepresentation

9.1 English law

9.1.1 Introduction

9.1.2 The elements of misrepresentation

Ambiguity

False

Statement

Of fact

Addressed to the complainant

Materiality and inducement

9.1.3 Conclusion

9.2 The PICC, PECL and DCFR

9.2.1 Introduction

9.2.2 Unacceptable conduct

9.2.3 Impairment of consent

9.3 The US Restatement (Second) of Contracts

9.3.1 Introduction

9.3.2 Unacceptable conduct

9.3.3 Impairment of consent

10 Duress

10.1 English law

10.1.1 Introduction

10.1.2 Developing the dual rationale

10.1.3 From duress to the person to a general doctrine

10.1.4 The elements of economic duress

Unacceptable conduct: illegitimacy

Impairment of consent: causation

The lack of practical alternatives

10.1.5 Conclusion

10.2 The PICC, PECL and DCFR

10.2.1 Introduction

10.2.2 Unacceptable conduct

10.2.3 Impairment of consent

10.2.4 The lack of a reasonable alternative

10.3 The US Restatement (Second) of Contracts

10.3.1 Introduction

10.3.2 Unacceptable conduct

10.3.3 Impairment of consent

10.3.4 The lack of a reasonable alternative

11 Undue influence

11.1 English law

11.1.1 Introduction

11.1.2 The underlying rationale of vitiation

11.1.3 Undue influence: one vitiating factor; two evidential routes to proof

11.1.4 The elements of undue influence

Introduction

A capacity to influence

An exercise of influence

Unacceptable conduct: the exercise of influence was undue

Impairment of consent: the undue exercise of influence caused the transaction

11.1.5 Presumed undue influence

Introduction

The first prerequisite: a personal influence

The second prerequisite: a transaction not readily explicable by proper motives

Rebutting the presumption

11.1.6 Conclusion

11.2 The US Restatement (Second) of Contracts

11.2.1 Introduction

11.2.2 Influence/weakness

11.2.3 Unacceptable conduct

11.2.4 Impairment of consent

12 Unconscionability

12.1 English law

12.1.1 Introduction

12.1.2 The elements of unconscionability

Weakness

Unconscionable conduct

Substantive unfairness

Absence of advice

Impairment of consent: causation

12.1.3 Conclusion

12.2 The US Restatement (Second) of Contracts

13 Undue influence and unconscionability under the PICC, PECL and DCFR

13.1 Introduction

13.2 Unconscionability

13.2.1 Weakness

13.2.2 Unacceptable conduct

13.2.3 Impairment of consent

13.3 Undue influence

13.3.1 Influence/weakness

13.3.2 Unacceptable conduct

13.3.3 Impairment of consent

14 Conclusion

14.1 My central theory

14.2 My central theory reflected in English law

14.2.1 The first category

14.2.2 The second category

14.2.3 Summary

14.3 My central theory and the PICC, PECL and DCFR

14.4 My central theory and the US Restatement (Second) of Contracts

14.5 My central theory and development of English law

BIBLIOGRAPHY

Index