Men Behaving Badly: An Analysis of English Undue Influence Cases

Abstract

Undue influence in mortgage cases is a major issue for women in turn-of-the-century English Land Law. The case reports reveal a catalogue of bad behaviour by men - not simply the perpetrators but also solicitors and bank officials - which courts allow to go unchecked, indeed almost unnoticed. This is because men’s bad behaviour in this area (as in others) is taken for granted in our society. Law uses a number of mechanisms to obscure and condone men’s bad behaviour: claiming the neutrality of doctrine and the ‘special tenderness’ of equity towards women, pretending ‘balance’ where in reality there is none, using language in clever and manipulative ways, and managing to ignore women’s pain by shifting the focus of the law from the wrong itself to the ways in which creditors can avoid being affected by it. The undue influence test is manifestly unsuitable for the protection of women; equity’s role appears to be the defence of business interests, not the weak and vulnerable. While there are some recent and welcome signs of legal engagement with the problems of masculinity, the solutions to women’s problems lie largely outside law, in women’s greater financial independence and a realignment of the relationship of men and women to what Joan Williams calls ‘domesticity’.