Zamet V Hyman Case Study

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The presumption can be rebutted when the party received independent advice as was the case in Zamet v Hyman [1961] 3 All E.R. 933, or when it is clear that the party have intended to act in an odd way (see for example Re Brocklehurst 's Estate [1978] Ch 14 331 where there was an intention by the dceased to devalue his own estate). However the presumption will not be rebutted when the person who benefits has acted in an underhand way, such as in Hammond v Osborn [2002] EWCA Civ 885 where a carer had acted in slightly underhand way, leading to the courts finding that the gift of the whole estate was void because of undue influence. It is interesting to note that Zamet has not been followed entirely in the most recent of cases. In the case …show more content…

This means that damages are unlikely to be awarded, and instead the claimant will be entitled to a remedy such as recission, the setting aside of the contract. This limit on outcome can be seen as slightly unfair as some parties may wish for the transaction to remain in place, and they just be compensated for their loss. This would particularly be the case when there are collateral contracts in existence, meaning that a whole chain of transactions must be set aside for the original wronged party to achieve any sort of justice. In case law we see that the party is effectively hamstrung from a remedy. In The Atlantic Baron [1979] QB 705, shipbuilders increased the price of a ship they were building by 10% due to currency fluctuation. They had no contractual basis for doing so, but as the owners had a contract for the ship 's charter in place, they had to make the payment. This affirmed the contract, meaning that they could not then have it set aside. If damages were awardable, they could have sought the 10% monetary value back from the builders. Instead they were barred from a claim. The lack of flexibility here is therefore questionable justice for the wronged party, who must, for commercial or other reasons, keep the contract intact. It does not appear at all fair that some of contract law is restrained in this way whilst most other aspects are not. It is the submission of this writer that complete justice will only be found in this area when the innocent party can opt to receive damages in lieu of the recission of the contract. The law in this area requires expansion in order to be entirely

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