The Doctrine of Unconscionability in Malaysia: Undue Influence

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THE DOCTRINE OF UNCONSCIONABILITY: IS IT APPROPRIATE FOR IT TO BECOME THE UNDERLYING PRINCIPLE FOR A CLAIM OF VOIDABLE CONTRACTS ON THE GROUNDS OF UNDUE INFLUENCE? Table of Contents 1.0 Introduction 3 2.0 Concept of undue influence 3 3.0 Doctrine of unconscionability 4 4.0 Correlation and distinction of the two doctrines 5 5.0 Unconscionability within the meaning of section 16(3) (a) of the…show more content…
in a position to dominate the will of the other6 and unfair advantage7. Upon establishing these two elements, the onus of proof then shifts to the party accused.8 According to Poosathurai v Kannappa Chettiar and Others9, the party alleging must show that the influence was undue and unconscionable. Absence of which does not classify as Undue Influence as per section 16(1) of the Act. 3.0 Doctrine of Unconscionability. Unconscionability, on the other hand is not a concept embodied within the Contracts Act 195010 and as such is not thoroughly explained nor is it well established. Unconscionability is basically an English doctrine that deals with the imbalance power of two contracting parties in which one suffers from a special impairment. It is adopted in our local context and applied in a broader view in Saad Marwi v Chan Hwan Hua & Anor.11 Here, the appellant owned two pieces of land elsewhere and both parties then entered into an agreement whereby the appellant was to sell his land to the respondent for an undervalued price of RM42, 000 (a deposit of RM4200 was to be paid offset to harvest coconut). The contract was drawn up by the respondent’s solicitor in English, which the appellant is incapable to understand and to make matters worse, he did not obtain any separate legal advice pertaining it. It can be seen that the respondent had acted unconscionably when he used the appellant’s position of special disability to ‘induce’ him to enter into the alleged

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