and valiidly invoked, might help !
Very often, instances of any requirement – in the present context, to sign a contract agreement, though prima facie,- because of its terms or conditions or the like (not barring omission to include any of them conventionally considered material ) -being 'one-sided' hence unlawful or illegal, or in any case highly objectionable, come to light but go unnoticed or not being made a conscious note of.
To readily recall one such instance: Not long before it came to be noted that lending banks , PSBs at that, requiring the borrower to furnish an affidavit in the form of a personal undertaking to repay the loan in the event of any deficiency in title or the like attached to the mortgaged property provided as a security for repayment. Albeit any such deficiency , especially where the property is an apartment or flat purchased from the promoter / seller is traceable to and for which the blame undeniably lies with the promoter/seller, or original holder. If so, and were questioned, rightly so, strict legal position, it appears, is that any such requirement thrust upon , even if been complied with by, the gullible borrower / buyer could be successfully contested as non-est.; not enforceable in law. That will be so, provided it is case coming within the mischief / on the ground of what in contract law is known as consent given under “duress and undue influence” ; even if verges on but is strictly not tantamount to “coercion”.
Search Google for an answer; here is one specimen/ typical answer! >
insitelaw - Law of Contract: Duress & UNdue Influence
www.insite
lawmagazine.com/ch16
duress.htm
An Extract>
< Duress and Undue Influence
There are two important cases at the foot of this section where judgments have been extracted to give you an opportunity to read more deeply.
Barclays Bank v O'Brien [1994] AC 180
A security obtained by misrepresentation or undue influence may not be enforced – the creditor should take pains to make sure that no unfair advantage was gained.
The Etridge case
Royal Bank of Scotland v Etridge (No . 2) [2001] UKHL 44; [2002] AC 773
Introductory
Adam Opel Gmbh and Renault SA v Mitras Automotive (UK) L:td [2008] EWHC 3205 QB
Read this case to get a feel for the subject.
David Donaldson QC sitting as a Deputy High Court judge
"The general principles of the law relating to economic duress have been elaborated over the last forty years in a number of decided cases, and were not in issue before me. It was common ground that they are accurately summarised by Dyson J in DSND Subsea Ltd v Petroleum Geo Services ASA, [2000] BLR 530 at para. 131 and repeated in his later decision in Carillion Construction Ltd v Felix (UK) Ltd, [2001] BLR 1 as follows:
"The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tanking of Monrovia v. ITWF [1983] AC 336, 400 B–E, and The Evia Luck [1992] 2AC 152, 165 G.
In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he confirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining."
At common law if a party enters into a contract under duress the contract may be set aside on ground of duress unless it has been affirmed expressly or impliedly after the duress has been withdrawn.
Duress may take several and various forms and, in particular, may take the form of economic duress, but whatever form it may take it must amount to a coercion of the will – such that there was no true consent.
The court will consider a range of factors in determining whether a duress was present and, in particular will wish to see whether the person coerced protested, whether he had an alternative course of action available and whether he sought and took independent advice.
Shivas v Bank of New Zealand [1990] 2 NZLR 327 >
THE ABOVE REFERRED COMMON LAW PRINCIPLES ARE NOT BUT OF NO LESS APPLICATION, HENCE SHOULD BE OF AVAIL, ALSO TO CASES GOVERNED BY THE CONTRACT LAW IN INDIA.
Below is an extract from the text of an Indian court judgment:
< 41. Language of Section 16 of the Indian Contract Act 1872 shows that existence of a
subsisting relationship where one party is in a position to dominate over the will of the
other has to be established before establishing that an unfair advantage has been obtained
by a party. The common law principles relating to duress, undue influence, coercion etc.
rest on the principle of absence of consent. A person subjected to duress, coercion or
undue influence is said to have had his will overborne so that he was incapable of making
a free choice. But as law developed it was recognised that where the will is not
overborne but is deflected it would be sufficient to hold lack of free will. [See Lynch Vs.
DPP of Northern Ireland (1975) AC 653].>
Key Note: In one’s view, for many of the grievances aired against the promoters/sellers, time and again, by the buyers’ of flats or apartments, mainly by reason of ‘one-sided contract agreement' (To Sell or Of Sale) the scope for remedy will be worth exploring having in focus the indicated legal position.
