Consent COMMON LAWIntroduction The issue is whether [NAME1] can avoid the contract of [Issue]

To successfully avoid the contract, [NAME1] must prove that there was a lack of consent, capacity, legality and/or formality when making the contract.*orWhether [NAME2] can enforce the contract of [issue] on [NAME1]

To be successful at enforcing the contract, [NAME2] must prove that there is no lack of consent, capacity, legality and/or formality from [NAME1].

Undue InfluenceWas there Undue influence? Undue influence is stated as unfair advantage by one party to contract over the other party.

To establish that there is Undue influence, it must be proven that1) There is a pre-existing relationship among the parties such that one has controlling influence over the other.2) The stronger party have taken advantage of the situation such that the weaker party is not exercising his individual judgment when entering the contract.

As [NAME1] was [reason illiterate, old, ignorant of business affairs etc.], he clearly relied [NAME2] for [issue]. Johnson v Buttress (1936) can be used in support of this. [NAME2] abused his position ** and [NAME3] was clearly aware of this. There was Undue Influence over [NAME1]. The [contract] is voidable as it is not enforceable.

** [Name] did not rely on [NAME2] for [issue]. [State Reason], therefore there is no Undue Influence over [NAME1].

Undue Influence Special relationships[Name2] and [Name] relationship is of a:1) Doctor and patient2) Lawyer and Client3) Trustee and beneficiary4) Parent/Guardian and Child5) Religious leader and follower Allcard v Skinner (1887)Thus, the law automatically presumes that undue influence is present by virtue of both parties existing relationship.

NOTE if relationship is below, go to UNDUE INFLUENCE, NOT SPECIAL RELATIONSHIPS1) spouse and spouse,2) principal and agent, 3) accountant and client, 4) bank and client5) employer and employee6) carer and patient

UnconscionabilityWas there unconscionability?Unconscionable conducts are acts of taking advantage of another persons special weakness or disadvantage.

To prove unconscionability, it must be established that a party has special disability, thus grievously impairing his bargaining power and as a result of the other party taking advantage of the situation, an unfair contract is formed.

[NAME1] was [Reason], thus there was unconscionability on his part. Commercial bank of Australia v Amadio (1983) can use in support of this. Thus the [contract] is voided as it is not enforceable.

** Thus there was no unconscionability on his part. Thus the contract is not void and it is still enforceable.

**Reasons poverty or need of any kindSicknessAgeSexInfirmity of body and mindIlliteracy or lack of educationDrunkenness Blomley v Ryan (1956)Lack of assistance or explanation where that was necessaryBeing in love Louth v Diprose (1992)

Non-Est-FactumNon Est Factum, or not my deed, refers to a claim that a written and signed contract contains terms or legal consequences of which one of the parties was unaware as a result of a disability or disadvantage.

Doesnt take in to effect if party is LAZY, or in a HURRY, therefore did not read contract. 1) Blind, or illiterate, or not encouraged to read documents as a result of misrepresentation Petelin v Cullen (1975) and 2) the mistake must be about a fundamental nature of the document. The contract is void and unenforceable.[State reasons]

Other Vitiating factors if dont have, say - EG. duress does not apply to this case as [reason]

DuressWas there duress?

If [NAME1] was under constraint or actual injury while making contract, contract may be void or voidable Barton v Armstrong (1973) example of physical duress.

Threats to a partys economic interests are considered Economic Duress North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd

In this case [..] which [eg. Lead him to sign the contract.] therefore, there are clear signs of duress in this case and the contract may be void or voidable.

Capacity Minor contractsMinor contracts are contracts entered into with people under 18 years old. s3 of the Age of Majority Act 1977 (Vic) General rule is that minors can enter into contracts, but they are only enforceable BY the minor, not AGAINST him or her. This however, does not cover contracts for NECESSARIES such as clothing, shelter, food, accommodation and education. Contracts pertaining to such are valid and enforceable AGAINST the minor. ** if its contracts for employment, education or training use Hamilton v Lethbridge Do take note that the court takes into account the minors needs and standard of living before determining what is consider NECESSARY for the minor. s7 of the Goods Act 1958 (VIC) establishes what are necessaries. So the question is : does the item pertaining to the contract considered a necessity?

**legality

RESTRAINT OF TRADEWas the contract legal? Was there illegality involved?

Contracts to commit a crime or tort are void

Under the Nordenfelt rule, Contracts in Restraint of trade are prima facie illegal and void, UNLESS it is in the parties and the publics interest. (cannot open another business of the same trade.. etc.. are voided as it stifles economy)

Restraints in freedom of use of GENERAL SKILLS AND KNOWLEDGE cannot be valid , as established in Herbert Morris v Saxelby

Confidential info and Trade secrets however, such as [Special Recipe], which will be acquired in the course of her employment can be restricted by [Name] as established in Forster V Suggett.

To establish a valid restraint, the restraint must also fall under reasonable time and space. If the time and space is unreasonable, it will still be void and unenforceable. In this case [] which is reasonable/ not, thus it is valid/ not valid.

STATUTORY RIGHTS ACLACL s 20 can also be used if [NAME] wants to pursue her Statutory rights. S 20 of ACL prohibits a person from engaging in conduct which is unconscionable within meaning of Common Law. Therefore, [NAME2] has breach s20 of ACL due to unconscionable conduct and the contract is unenforceable.

ACL s 21 prohibits unconscionable conduct with regards to supply and Acquisition of goods and Services

ACL s 22 Provides the list of specific matters court takes into account deciding whether there has been a breach of s21