Scottish Court of Session Decisions

"(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 upon any particular subject, ..., 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. Under this issue you cannot separate, as distinct and really distinguishable matters, the state of the man's mind and nerves from the way the transaction was managed. This is peculiarly the case, either in extreme old age, in which, though the mind may be entire, firmness to resist even persuasion, and to feel himself in opposition to those on whom the old man feels himself dependent for comfort in his daily life, may be awanting to such a degree as to make undue influence amount to all the circumvention which in that case is required; ...".

"... it was contended that we must find some positive fact proved which amounts in itself 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 taken of the question to be investigated ..., I believe nineteen or 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 or proprietary of entering into particular arrangements as to his affairs has been weakened ..., 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 some one whose interest 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".