Clunie v Stirling, (1854) 17 D 15

Citation: Clunie v Stirling, (1854) 17 D 15

Rule of thumb: Can you trick any person with a weak mind into a bad contract - a disabled person, an older person etc? No, this is facility & circumvention and there is a very low standard of proof required to have the Court declare these contracts null & void.

Judgment:

This case affirmed the principle ‘low proof standard in facility and circumvention will cases’ – the Court in this recognised the difficulties in proving what a 3rd party close to the vulnerable testator said, and that the burden therefore lies on the 3rd party to explain the rationality of the transactions in their favour, ‘The actual mode or particular acts of circumvention may not be discoverable or easily proved... It is seldom possible to ascertain the particular acts or practices by which either a facile old man, or a person whose power of judging of the fitness and propriety of entering into particular arrangements as to his affairs, has been weakened’, Lord Justice-Clerk Hope at 17

Ratio-decidendi:

Facility and circumvention [4] The essential elements of facility and circumvention are (i) weakness of mind on the part of the grantor of the deed under challenge; (ii) lesion to the grantor by means of the deed; and (iii) circumvention practised by the beneficiary of the deed (McBryde on Contract, (3rd Ed, 2007) at pps 433-437, paras 16-12 to 16-21). The presence of the third may be inferred from proof of the first two, or the first two combined with circumstantial evidence.[5] In Clunie v Stirling (1854) 17D 15 a former army officer was persuaded into purchasing an annuity on his own life and after his death his executor raised an action against the person who had given him the annuity on the ground of facility and circumvention. The jury having found in favour of the pursuer, the defender reclaimed on the basis that the verdict was contrary to the evidence. In the course of his opinion the Lord Justice Clerk (Hope) stated at p 17:“[The issue of facility and circumvention] is intended to embrace any case in which, where a person has become easily imposed upon, or ready to yield his assent, it may be upon a particular subject, whether from old age or actual disease, or the effects of the same on the nerves, leaving an unnatural anxiety and nervousness on any particular subject, especially the state of his future income, when he has fallen into a helpless situation, another leads him on into a highly disadvantageous bargain, to his own benefit, or that of the party for whom he is acting, and who adopts the same. The actual mode or particular acts of circumvention may not be discoverable or easily proved. But the result may demonstrate that the party was really circumvented in the sense of the issue, when he was led into the transaction under challenge; and then the nature of that transaction, the mode in which, and the party by whom, it was carried through, and the object apparent on the face of it, for which, if palpably disadvantageous, it was huddled up without proper inquiry, and without the individual receiving the aid he ought to have received, all bear on the jury question, whether the party had been circumvented.” In that case the court did not regard it as outwith the scope of the jury’s power to find in favour of the pursuer notwithstanding the absence of evidence of any specific acts of circumvention because the deceased’s mind was so pliable and the detriment from the transaction so clear. Lord Justice Clerk hope said at p 18: “Under the second issue, it was contended that we must find some positive fact proved which amounts to a distinct act or piece of circumvention; some trick, some particular practising on the mind of the party at a particular time – some details, in short, as to the acts and practices which the general term circumvention includes; and that if one cannot lay one’s hand on distinct instances, detected and proved, of particular acts and practices amounting to circumvention, there is no ground for supporting the verdict. If such a view were to be taken under the second issue, and of the mode in which alone it was competent for a jury to arrive at a verdict on that issue, I believe nineteen out of twenty of the cases in which deeds have been set aside under this issue must have failed. The correct view of the matter is quite different. It is seldom possible to ascertain the particular acts or practices by which either a facile old man, or a person whose power of judging of the fitness and propriety of entering into particular arrangements as to his affairs has been weakened by the nervous apprehension and impatience and excited feelings which a very bad shock of paralysis and great bleeding produce, has been induced to enter into disadvantageous transactions, to his own great prejudice. What passes is commonly with some one party, either the defender or an agent, and is either unknown, or if such party is examined, all practices may be positively denied, which raises a question as to his veracity for the jury. But if the facts satisfy the jury that there was in such party a motive to mislead and induce him to enter into the transaction, either for his own benefit or for the benefit of someone whose interests he was promoting, and that only under persuasion and untrue representations, acting on a mind facile or nervously anxious, from disease, on the subject, could have brought about the result, then it is for the jury to say whether they draw from the whole case the inference of circumvention. Hence that general ground of objection to the verdict is unsound.”

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Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.