The Liability of Third Party Volunteers for Undue Influence

If a claimant, C, gives property to the defendant, D, as a result of actual or presumed undue influence over C by another person, X, why is D liable to rescind the gift? A common misconception, given Equity’s ubiquitous concern with conscience, is that D’s liability must be based upon fault and that this will be established if D was aware of the relationship of influence between C and X. 1 Professor Burrows has challenged this assumption by reference to eighteenth and nineteenth century authorities involving third party volunteers to relationships of influence. 2 At issue in these early undue influence cases tended to be whether liability to return a gift to C by way of rescission could be avoided if C had made the gift to X’s innocent spouse or children, rather than directly to X. The courts were adamant that it could not. Professor Burrows concludes that a volunteer, D, who receives property directly from C as a result of a relationship of influence between C and X is subject to strict liability, meaning a liability not dependent upon fault. 3 He uses this finding to support his argument that other forms of equitable third party liability, such as recipient liability for breach of trust, should also be strict, subject to defences, in relation to volunteers.