Legal Research Essay: Merging Undue Influence and Unconscionability

This essay delves into the doctrines of undue influence and unconscionability, examining their similarities, differences, and the implications of merging them within the legal framework. The essay begins with an introduction that defines the two doctrines and highlights their overlapping nature, particularly in the context of Australian law. The discussion section analyzes the advantages and disadvantages of merging these doctrines, considering how it might simplify legal processes while also potentially overlooking crucial distinctions. The essay then explores the structure of the answer, detailing the use of introduction, discussion, and conclusion sections. It provides an explanation of case law, including its elements and relevance, using Commercial Bank v Amadio as an example. The essay also justifies the use of qualitative research methods and secondary data, such as books, journal articles, and case laws, emphasizing their reliability and relevance to the topic. Finally, it concludes by summarizing the key aspects of the research process, including the selection of sources, the methods used, and the relevance of the collected information, thereby providing a comprehensive understanding of the doctrines and the research methodologies applied.

Running head: LEGAL RESEARCH
LEGAL RESEARCH
Name of the Student
Name of the University
Author Note

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Question 1
Introduction
The doctrine of undue influence and unconscionability strive to achieve fairness in
different situations and transactions where such situation or transaction has been driven by
the use of influence or power. These doctrines provide remedies to tackle the effect of a
transaction which seems unfair. These doctrines were extensively discussed and differentiate
in the case of Commercial Bank v Amadio1. In Australia, it is difficult to differentiate between
the two as they are often treated as one and the same. Therefore, the advantages and the
disadvantages of merging the two doctrines will be discussed herein.
Discussion
The doctrine of undue influence refers to the circumstance when a weak is influenced
to enter into an agreement. Undue influence could be ‘presumed’ or it could be ‘actual’.
Presumed undue influence occurs when the influence of the stronger or superior one is such
that the weaker tends to presume that there is a presumed undue influence present in the
transaction2. On the other hand, actual undue influence occurs when there is a presence of
physical coercion in the transaction that does not let the weaker one exercise his own sense of
judgement to make decision. The doctrine of unconscionability refers to the situation where
benefit is gained by way of deliberate exploitation of a weaker one by way of special
disadvantage or power imbalance between the two parties. On a proper legal action, an
unconscionable dealing could be rescinded3.
Therefore, it could be pointed out that both the doctrines are quite similar in terms of
their principles for they both subjugate over the weak in order to receive benefit out of them.
The advantage of merging the two principles is that it becomes easier to deal with both kinds
1 Commercial Bank v Amadio (1983) 151 CLR 447 at 474
2 Horning, Sheena M., et al. "A case of elder abuse and undue influence: Assessment and treatment from a
geriatric interdisciplinary team." (2013) 12.5 Clinical Case Studies 373-387.
3 Stone, Rebecca. "Unconscionability, exploitation, and hypocrisy." (2013) Journal of Political Philosophy,
Forthcoming.

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of scenario by following similar avenues, as both of them seeks similar remedy of rescission.
The disadvantage of merging them would be that undue influence strives to avoid legal
transaction where a party’s consent is defective, while in case of unconscionability, consent is
present at most cases, however such consent is procured by exploiting the plaintiff.
Therefore, even though they seem similar, the disadvantage of merging is that the thin-line
difference of the two is often missed.
Conclusion
Therefore, to conclude, it could be stated that even though both the doctrines are the
same and their remedies lead to rescission of the transaction, yet the minute difference
between the two is often overlooked that defeats the basic requisites of the doctrine.
Question 2
Introduction
The essay discusses about the research method that a researcher strives to follow
while conducting a brief research on a given topic. The use and the purpose of using
qualitative research method is dealt win the essay, along with the usefulness of using
secondary data collection method. The discussion section of the essay comprises of the
answer that have been asked in reference to question 1 of the assignment.
Discussion
Structure of Question 1
The above framed answer has been divided into three headings, namely
Introduction, Discussion and Conclusion which divides the answer in brief sections,
thereby helping the writer to make the reads understand about the content in an easier way.
The introduction gives a brief overview of the content by supporting it with a case law that

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talks about the difference of the two variables of the content. The Discussion gives a detailed
view of the two variables along with a discussion on the advantages and the disadvantages of
the two, when merged together. The discussion is for describing the variables at length.
Lastly, the Conclusion forms an inference of the entire answer and gives a brief verdict of the
situation if and when the variable are merged.
Case Law: A source of information
A case law (Commercial Bank v Amadio case) has been been cited in the answer as
one of the source of information for the content of the answer. A case law refers to a
precedent or a judicial order that was passed by a court of law. Bankowski et al., stated that a
case law is cited in a situation where the content of such situation matches with that of the
case law. The elements of a case law is comprised of a tile and citation, the facts of the case
in question, the issues that were dealt with, the decision taken by the court, the reasoning
cited by the court, the dissenting judgement, if any and finally the analysis of the entire
order4.
Qualitative Research
For the purpose of this study, a Qualitative research was selected in order to judge
the quality of the content, which is to evaluate the advantages and disadvantages of merging
the doctrines of undue influence and unconscionability. Therefore, in case of evaluating
variable like advantages and disadvantages, it always necessary to opt for a qualitative
research method which helps to analyse the content in terms of their quality, not as per their
mass5.
4 Bańkowski, Z. "Rationales for Precedent,[in:] Interpreting Precedents, eds." (1997) N. MacCormick, R.
Summers, Aldershot.
5 Marshall, Catherine, and Gretchen B. Rossman. Designing qualitative research. (Sage publications 2014)

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This paper was entirely based on the relevant information collected from
secondary sources, like books, journal articles and case laws or precedent. As this paper
asked to evaluate the advantages and disadvantages of merging the doctrines of undue
influence and unconscionability, the researcher found secondary data to be more useful and
authentic as they have already been proven and peer reviewed. Moreover, a case law as a
source of data is considered to be one of the most reliable information as it has been
pronounced by an honourable court. The researcher purposefully avoided data collection
from primary sources as there were issues with its reliability and time constraint6.
Relevancy of the collected information
The paper is referenced with data collected from secondary sources, like books,
journal articles and case law or precedent. One of the books that have been used in the paper
supports the idea and value of using a case law or precedent in a research paper while the
other book gives information about qualitative research, upon which the answer to the
question 1 has been based. The case law that has been cited gives a support about an incident
of merging and differentiating between the doctrines of undue influence and
unconscionability. Lastly, the journal articles provides information in support of the
secondary data analysis. Therefore, it could be stated that all of the above mentioned sources
of data helps to collect relevant information and also supports the content of the answer to
question 1.
Conclusion
Therefore, by answering the given questions, a brief yet compact knowledge about
framing a structure for a research, secondary data collection process, qualitative research
analysis along with a relevant reference source has been gathered. The assignment would
6 Johnston, Melissa P. "Secondary data analysis: A method of which the time has come." (2017) 3.3 Qualitative
and quantitative methods in libraries 619-626.

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help the researcher in conducting further researches following the above discussed
methodologies, structures and sources of data.

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References
Books/Journals articles
Bańkowski, Z. "Rationales for Precedent,[in:] Interpreting Precedents, eds." (1997) N.
MacCormick, R. Summers, Aldershot.
Horning, Sheena M., et al. "A case of elder abuse and undue influence: Assessment and
treatment from a geriatric interdisciplinary team." (2013) 12.5 Clinical Case Studies
373-387.
Johnston, Melissa P. "Secondary data analysis: A method of which the time has come."
(2017) 3.3 Qualitative and quantitative methods in libraries 619-626.
Marshall, Catherine, and Gretchen B. Rossman. Designing qualitative research. (Sage
publications 2014)
Stone, Rebecca. "Unconscionability, exploitation, and hypocrisy." (2013) Journal of Political
Philosophy, Forthcoming.
Case law
Commercial Bank v Amadio (1983) 151 CLR 447 at 474