the fiction of agency into an artform which was completely divorced from the commercial idea of an agency relationship. The most important matter now is to consider whether the lender is affected by the wrong-doing of the spouse who has applied pressure. For the purpose, there is no difference between misrepresentation and undue influence, following the leading authority of Barclays Bank plc v O’Brien. The House of Lords made it clear that there was no automatic presumption of undue influence in this type of case and the court must examine the relationship between the husband and wife to discover whether the wife has or has not exercised an independent judgment. If there is an absence of independent judgment, there is undue influence, but it must also be established that the lender is affected by that influence. The House of Lords accept that this will be the case either if there is a true agency relationship between the lender and the spouse or other ‘close’ person applying the

doi:10.4324/9781843141518-175

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the fiction of agency into an artform which was completely divorced from the commercial idea of an agency relationship. The most important matter now is to consider whether the lender is affected by the wrong-doing of the spouse who has applied pressure. For the purpose, there is no difference between misrepresentation and undue influence, following the leading authority of Barclays Bank plc v O’Brien. The House of Lords made it clear that there was no automatic presumption of undue influence in this type of case and the court must examine the relationship between the husband and wife to discover whether the wife has or has not exercised an independent judgment. If there is an absence of independent judgment, there is undue influence, but it must also be established that the lender is affected by that influence. The House of Lords accept that this will be the case either if there is a true agency relationship between the lender and the spouse or other ‘close’ person applying the

ABSTRACT

The most important matter now is to consider whether the lender is affected by the wrong-doing of the spouse who has applied pressure. For the purpose, there is no difference between misrepresentation and undue influence, following the leading authority of Barclays Bank plc v O’Brien.51 The House of Lords made it clear that there was no automatic presumption of undue influence in this type of case and the court must examine the relationship between the husband and wife to discover whether the wife has or has not exercised an independent judgment. If there is an absence of independent judgment, there is undue influence, but it must also be established that the lender is affected by that influence. The House of Lords accept that this will be the case either if there is a true agency relationship between the lender and the spouse52 or other ‘close’ person applying the pressure or where the lender is taken to have notice of the undue influence.