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I have less difficulty accepting undue influence as a species of unjust enrichment unrelated to the fault of the transferee. Just as a causative mistake may operate to vitiate an intention to make a gift (without it necessarily being fundamental in the contractual sense and without the transferee being at fault in any way), it is entirely plausible that the same is true where a gift is tainted by undue influence (which may be that exercised by someone other than the transferee).

My only concern with the rejection of undue influence as a species of wrong as well (by way of alternative analysis) is where B exercises undue influence over A, causing A to make a gift to C and C bona fide changes his position or becomes bankrupt so that A's claim against C is either extinguished, reduced or worthless. In these circumstances, if the alternative analysis is not available, then A cannot claim as against B. I am not sure if this conclusion is necessarily correct.

To answer Mr Neyer's point about presumed undue influence being counter-intuitive, it is not sufficient merely to establish some sort of relationship of trust and confidence to raise the presumption. It is necessary to, according to Lord Nicholls, demonstrate that the transaction calls for an explanation. Bearing in mind this additional requirement, I do not see how it is counter-intuitive.

Kelvin Low
Assistant Professor
13 Law Link
Faculty of Law
National University of Singapore
Singapore 117590
Tel: 68744192
Fax: 67790979