Suchergebnisse

Persons in positions of authority are able to engender feelings of reverence in others. Such reverence, unfortunately, can lead to exploitation. For many centuries, courts and legal writers have struggled to come to terms with this problem. Reverence does not fit comfortably into the traditional niches of metus (because it does not necessarily involve fear instilled by threats of harm) and dolus (since inducing fear is not the same as deception). Yet, at times, it simply cannot be ignored in assessing the validity of a contract. This article shows that medieval and early modern civil lawyers re-interpreted the Roman concepts of metus and dolus to provide relief to those whose contractual intention had been severely and detrimentally distorted by feelings of reverence. However, from about the 17th century onwards the inchoate civilian notion of undue influence gradually withered away, and it was only in England that a more mature doctrine of undue influence evolved. The mixed legal systems of Scotland and South Africa, faced with insufficiently developed rules of Roman-Scots and Roman-Dutch law, were bound to be attracted by the English concept which they eventually decided to embrace. But it was not a complete reception. Neither Scots nor South African law make use of the presumptions of impropriety which characterize undue influence in English law. Yet, the works of medieval and early modern lawyers reveal that the use of presumptions is by no means alien to the civilian tradition, and that they can be employed usefully to assist those who might otherwise find it difficult to prove that they have been exposed to a kind of influence which, in all likelihood, has to be characterized as 'undue'. The position in English law merely reflects what in civilian systems has always been regarded as the appropriate solution in cases of contracts affected by metus. The experiences in South Africa and Scotland also contain a lesson for the broader comparative community, for they appear to confirm the wisdom of accepting a notion of undue influence into a set of principles of European private law.

Undue influence in mortgage cases is a major issue for women in turn-of-the-century English Land Law. The case reports reveal a catalogue of bad behaviour by men - not simply the perpetrators but also solicitors and bank officials - which courts allow to go unchecked, indeed almost unnoticed. This is because men's bad behaviour in this area (as in others) is taken for granted in our society. Law uses a number of mechanisms to obscure and condone men's bad behaviour: claiming the neutrality of doctrine and the 'special tenderness' of equity towards women, pretending 'balance' where in reality there is none, using language in clever and manipulative ways, and managing to ignore women's pain by shifting the focus of the law from the wrong itself to the ways in which creditors can avoid being affected by it. The undue influence test is manifestly unsuitable for the protection of women; equity's role appears to be the defence of business interests, not the weak and vulnerable. While there are some recent and welcome signs of legal engagement with the problems of masculinity, the solutions to women's problems lie largely outside law, in women's greater financial independence and a realignment of the relationship of men and women to what Joan Williams calls 'domesticity'.

Despite the widespread ratification of the United Nations Convention on the Rights of the Child, children continue to struggle to have their participation rights recognised and supported. This is evident within family law, where despite sometimes progressive and strong legislation, children's views are often not heard, nor given due weight, when parent-child contact is contested within the courts. This paper explores barriers to children's participation rights being realised. It uses Scotland as the example, due to its strong legal safeguards and mechanisms that aim to support participation rights. The paper draws on recent empirical research with legal professionals, combined with an analysis of reported case law and relevant literature, to explore the barriers 'on the ground' for children's participation rights. Through our analysis, we offer new ways to conceptualise the notion of influence in children's participation rights in family actions. We offer the conceptual devices of 'the influenced child' and 'the influential child' to elucidate how children's participation rights are restricted.

"In THE WOLF AT THE DOOR, veteran California attorney and elder financial abuse writer Michael Hackard draws from forty years of legal experience to advise families, caregivers, and professionals who work with seniors what elder financial abuse is, how to identify it, and--most importantly--what to do if abuse is suspected. As the baby boomer generation rapidly ages into retirement, elder financial abuse threatens to become a national epidemic. If not addressed early and aggressively, this unique form of exploitation can tear families apart, leaving shattered relationships and depleted bank accounts in its wake. You may not be able to prevent elder financial abuse from happening, but THE WOLF AT THE DOOR will empower you to fight back before it's too late. Concise and chock-full of practical information, THE WOLF AT THE DOOR is a must-have reference for anyone interested in learning about elder financial abuse and what can be done to combat it. The book is written for a general audience, and it offers case studies, research, and hard-won observations gleaned from a long career representing abuse victims and their loved ones. An index and compact sections make navigation easy, and dozens of endnotes direct readers to additional information about elder abuse, undue influence, estate planning and trusts, and more. The net profits from the sale of each copy of THE WOLF AT THE DOOR will be donated to the Alzheimer's Foundation of America."--Publisher's description

Monetary incentives are increasingly used to help motivate survey participation. Research Ethics Committees have begun to ask whether, and under what conditions, the use of monetary incentives to induce participation might be coercive. The article reports research from an online vignette-based study bearing on this question, concluding that at present the evidence suggests that larger incentives do not induce research participants to accept higher risks than they would be unwilling to accept with smaller ones.