The Relevance of Reverence;Undue Influence Civilian Style

Abstract

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.