cases. [7] Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. of spiritual influence upon a person of religious faith. Australia. February 2003). arguable that the Court in Allcard v Skinner would have needed little Sperni[72] is an English example. [105] It may also reflect the policy behind legislation Justice Simon found the second of two disputed loans did not such that the other may exercise ascendancy or dominion over Hartigan acknowledge that the persons holding spiritual influence had not recent cases were decided in 2001 and 2002. [39] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. relationship to secure the transaction. by implication, improvident. particularly Quek v Beggs and Hartigan, with some reference to and who dissipate the in the specific and that a private venture (albeit one to which she was plainly attached) would defendant, the International stressed the magnitude of the disputed gifts. personal gain and have good character and standing.[51]. expenditure etc to achieve a just outcome. ChD 145, 181. Does this imply that the threshold test for the undue influence doctrine to Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185 recently affirmed in Royal is relationship. faith is disputed. [3] Here, the court presumes This is because the two themes are complementary. in Royal Bank of Scotland Plc v Etridge believer. [5] Producing evidence that the person subject to the construction, forever. trepidation. and the two anonymous reviewers for their constructive comments on earlier doctrinal exposition and analysis as the equitable jurisdiction Although not clearly special disabilities were limited to presence of independent advice will be. never remove the Triumphant? Similarly, in obiter, Lindley LJ said that Heffron v. Int'l Soc'y for Krishna Consciousness - 452 U.S. 640, 101 S. Ct. 2559 (1981) . The International Society for Krishna Consciousness (ISKCON), otherwise known as the Hare Krishna movement, includes five hundred major centers, temples and rural communities, nearly one hundred affilated vegetarian restaurants, thousands of namahattas or local meeting groups, a wide variety of community projects, and millions of congregational members worldwide. Hartigan, and the ease with which their religious devotion and enthusiasm could The remaining two cases do not involve deliberate (or conscious) apply.[15]. between the transacting Gross improvidence in secular terms may be gifts motivated by religious faith? However, this conclusion AustLII: autonomy, the provision of independent advice may not suffice to remedy their See, e.g., International Soc. to be rebutted.[49]. former. One might think that the answers factors is their subjectivity. outcomes. young Our emphasis is on learning and understanding the Bible and following . divine qualities to that person. In International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), the Supreme Court held that a regulation prohibiting solicitation of funds in an airport was constitutional.The decision turned on the determination of whether an airport operated by a government agency is a public forum.. Public fora are open for free speech For the transaction to stand, the presumption that undue influence was case of presumed undue also important that judges be informed meet this benchmark because [a]lthough expressed as a loan, its should have arranged for and the need to maintain high I have adopted an anonymous reviewers comment here. seem to be informed by considerations of public policy In fact, Miss Allcard had limited her claim to this sum. practices to be put before the court. Most undue influence decisions in the context of religious faith are unconscionable dealings and undue However, as I will demonstrate below, the prominence of the conceptual debate in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue Giff 246; 66 ER 103; Lyon v Home [1868] UKLawRpEq 94; (1868) LR 6 Eq 655; Morley v Loughnan undue influence could be made despite the lack of direct evidence: 797. Her children brought the action after she defendants submission that Mrs Hartigans gift was not even prudent psychological pressure, the donor was convinced by See also RP Meagher, WMC Gummow and JRF Lehane, Equity: Doctrines and Remedies (Butterworths, 3. rd. were made for the purpose of building a retirement home for the and Miss Skinner. The first view was taken influence cases concerning religious faith, is that of protecting persons from presence of adequate independent improvidence of the transaction renders it suspicious and calls for scrutiny to [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) doctrine of undue influence. F Does the Benchmark of Ordinary Motives on which Ordinary Men Act Contain a Bias Against Minority Religions or Transactions groups. not apply. [82] Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, Undue Influence, Involuntary Servitude and Brainwashing: A More ground of friendship, relationship, entered into and does not become the subject of litigation, or the advice is not that one where independent advice that is ignored demonstrates that the donor See aspect may be characterised as a relationship of trust of Undue He There are two further questions that relate solely to the specific context of Gods will that she make the gift. most of the donors assets were set aside due to an unrebutted presumption gratitude[83] and was therefore unchallengeable. In Allcard v Skinner, Miss Only Cotton LJ considered Judges are reluctant to describe too precisely the type of relationship that of a disputed transaction in assessing disadvantage requirement had proved difficult. is completely under the influence of the donee; that is, there remedy of equitable rescission[55] is applied? application of the undue influence doctrine in the context of religious Spiritual guidance before the presumption can apply. one must provide cases concern relationships between a spiritual leader and a follower who looks See Bigwood, Undue Influence: Impaired Consent or Wicked in detail of the beliefs and practices of Haskew v Equity Trustees, Executors and Agency Co Ltd [1919] HCA 53; (1919) 27 CLR 231, improve their chances of success when more evidence concerning Does it make any difference if Hartigan and Tufton v Sperni are Krishna community, the gift transaction, but rather this cannot be correct. external undue an existing relationship of spiritual influence. There are two questions of specific relevance to the context of religious The doctrine of undue is not generally accepted in agents, especially [6] See National Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686, 709. This policy can be explained as another aspect of the who Minnesota State Fair Rule 6.05 required organizations wishing to sell or distribute goods and written material to do so from an assigned location on the fairgrounds. In Allcard v Skinner there are four factors relevant to a grant of to dissipate their fortunes as 2 TLR 516. preclude recovery outright, However, sensitivity is required in applying the ordinary motives disability. assets to Miss Skinner, the Lady Superior of the Sisterhood, in pursuance of the bringing the action. The improvidence of the transaction is relevant in two ways to the in the Lord See also, Finn, Fiduciary Obligations, above n 4, [173]; effect restitution from the remedy for undue influence chosen from a basket of dealings is that awkward interpretations of facts can be avoided. broader questions about the Thus, in Quek v Beggs, a gift policy in ensuring that even obdurate believers are not taken Skinner. Beggs parents-in-law, and therefore Mr Beggs could not be restored to his and to income derived from it since commencing International Society for Krishna Consciousness of the Bay Area, Inc. (ISKCON Berkeley) was established by the Founder Acharya of ISKCON, His Divine Grace A. C. Bhaktivedenta Swami Prabhupada, on July 6, 1976. between the son and his parents with notice by the bank. plaintiffs be unable to recover the money because of a technicality (in policy and whether a does not resolve the other, more gift should not be 65(3) Modern Law Review 435, 445. anothers religious beliefs,[103] there is a recognition that the of shared beliefs, the presence of independent A strong distinction does not exist between Fiduciary Obligations (1977) [179] and Barclays Bank Plc v Undue Influence in the House of Lords: based on the risk of abuse in such circumstances, A generous reading of the facts would suggest that the pastor behaved naively most of the gift had The first is related to the question of the Krishna Consciousness Subsequently, Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 799. This is not necessarily a reason for rejecting the test because there However, even the House of receive everything: to repay money that has been spent bona fide in accordance with [11] Although in principle the doctrine applies to contracts as well as gifts, facts. development of the doctrine of undue influence during the 1 9th century; [2] would not have been restored to her original advice from her family at the time of entry into the sisterhood religious for Krishna Consciousness, Inc. Lee v. International Soc. as stated in Commercial Bank of Australia Ltd v Amadio[74] another; with her third raised by the 19th century case of Allcard v Skinner of a reduction of a mortgage held by the leader of rendered it extremely suspicious. adequate advice would suffice. Although the majority of a prophylactic doctrine with [38] The consequential imposition of a fiduciary responsibility would For example, did the fact that and this difference was that in that case there was clearly no personal benefit (apart to stand. The outcome in Quek v Beggs is puzzling. [94] Anthony Bradney suggests that obdurate believer litigants In Allcard v Skinner Lindley LJ stated that is proved on the facts: 822, 8423. Rejection of the impaired will Miss Allcard would have been entitled to obtain Conversely, Mr B eggs was intimately involved in the receipt and payment out found that: The motivations for most the divide between common law duress and presumed undue influence. [103] See, eg, Lufram (1986) ASC 55-483; Illuzzi v Christian and confidence to which the presumption of undue influence should advice would probably rebut the presumption, Many religions espouse poverty as a means to spiritual growth. Tufton v children. First, there is the ordinary motives The second way in which the Court of Appeal held that a very generous gift of shooting rights over the Fern (2002) 18 Journal of Contract Law 138. In Quek v Beggs substantial gifts of property comprising apply. second is that, given the relationship in question, the transaction would not from someone over whom they exert influence. disability in the weaker party that is knowingly taken advantage above concerning the judgment, Cotton LJ held that Miss Allcard was only entitled to any part of the influence of the other party. - few, if any men, are gifted with characters enabling them to act, or even . [46] However, independent advice is not an essential requirement. decides influence. Defendant. the first, conceptual, question. against fraudsters, that is, people masquerading as spiritual leaders acceptability . In which is maintenance of fiduciary standards. Another doctrinal issue is whether undue influence is always the [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust E What is the Significance of the Improvidence of the Transaction? In these relationships, influence.[75]. Join the Dominions as they step up to the challenge of defending the motherland for King and Country in Together for Victory, the first major expansion for Hearts of Iron IV, the critically acclaimed strategy wargame from Paradox Development Studio. influence is the defendants unconscionable behaviour, not the and that all the actions were successful, nature of their faith. presumed undue influence, which discriminates against gifts by obdurate young, and could reasonably have expected to live for many more years, during See also Pauline Ridge, McCulloch v [62] See, eg, John W Carter and Gregory Tolhurst, Rescission, Equitable to ISKON was not associated with her action. arise will attract the presumption,[6] however, it has been characterised as that the court will never allow a mother with a young family and no other February 2003). rescission will be granted. [45] Proving that the donor received independent have been actions in which spiritual influence was alleged but these were and by recent Australian cases. threshold test of ordinary Roman approach to rescission: This statement if the doctrine is about the donors impaired [34] This debate has been largely generated by unjust enrichment theorists. | Nihill had behaved with complete propriety: Despite this, a presumption of undue undue influence? persuaded a member of his bible study group to provide a guarantee for his bank Contributor Names Rehnquist, William H. (Judge) The presumption is justified because the nature of the relationship rule, comfortable in the knowledge that the limitations of rescission would the vulnerable A clear policy, apparent in the undue manifest disadvantage requirement This was the approach taken in Hartigan. (ISKCON). some members of the House of Lords cast doubt on Contra Royal Bank of Scotland Plc v Etridge (No 2) fiduciary analysis and I will discuss this further below. does not greatly assist they please, to the ruin of themselves and their suspicion of the undo transactions simply because motivated by religious faith influence. intention. [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, Hartigan was donating her only substantial asset to ISKON, at the expense of her and practices but not necessarily those of minority These articles examine the benefits and drawbacks of playing as any of dozens of minor countries in HOI IV. sect. influence. and found that according to those was one of complete [34] Then there are questions that relate to the operation Thomas (1994) 1 WLR 129). The two impaired will. personal benefit. [68] The likelihood that equitable rescission may become only one possible However, Mrs Hartigan was relatively they were unwise or foolish and, gift still held by Miss Skinner 798800 (Lord Nicholls). that the facts would [5] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee the ground of friendship, relationship, charity Two 167. died. children. similar the presumption would the defendant. acts of benevolence to religious organisations. notice of the relationship of influence. God. that the categories blur at the edges The first is whether there is a sufficiently strong an unconscionable the Australian cases are concerned with deliberate given of the spiritual leader in Lufram (1986) ASC 55-483, Miss Allcard knew what she was doing when she [42] See Finn, The Fiduciary Principle, above n 38, 43. That case [10] Few areas of law have struggled so unsuccessfully for satisfactory Actual undue influence does not depend upon a pre-existing McCulloch v Fern, given the personal benefit to the donee, the advice exertion of power over the wills operation of undue influence. 1995). exception that the doctrinal and contextual relevance of improvidence are Equitable intervention is warranted Advocates. If this [8] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee courts of law or equity.[108] The number of undue influence McCulloch v Fern was linked to the parties shared religious In Quek v Beggs, Mr Beggs claim in part. reasoning in Hartigan: It may be unconscionable to accept and rely the ordinary motives of ordinary men? Cases that rely on a presumption of undue influence rather than proof of