Legal Definitions - facility and circumvention

Facility and Circumvention

In Scots law, facility and circumvention describes a situation where a vulnerable person is unfairly influenced or manipulated by another individual to make a decision or enter into an agreement that is not in their best interest.

This legal concept involves two key elements:

• Facility: Refers to the vulnerable person's susceptibility to influence. This vulnerability might stem from factors such as advanced age, illness, emotional distress, a diminished mental capacity, or a significant lack of experience.
• Circumvention: Refers to the manipulative, deceptive, or exploitative actions taken by another person to take advantage of that vulnerability. These actions lead the vulnerable person to act against their own financial, personal, or legal well-being.

If a transaction or agreement is proven to have occurred under conditions of facility and circumvention, it can be declared void, meaning it is treated as if it never legally existed.

Here are some examples illustrating how facility and circumvention might apply:

• Example 1: Exploiting an Elderly Individual

  An elderly widow, recently diagnosed with early-stage dementia and feeling isolated after her husband's passing, begins receiving frequent visits from a new acquaintance. Over several months, the acquaintance gradually persuades the widow to change her will, leaving a substantial portion of her estate to the acquaintance, despite her having close relatives she previously intended to benefit.

  How it illustrates the term: The widow's grief, isolation, and early-stage dementia represent her facility, making her vulnerable to influence. The acquaintance's persistent visits and manipulative persuasion to alter the will against the widow's established intentions constitute circumvention. The resulting change in the will is clearly against her long-term interests and likely her true wishes.

• Example 2: Pressuring a Person with Learning Difficulties

  A young adult with moderate learning difficulties, who manages daily life but struggles with complex financial decisions, is approached by a high-pressure salesperson. The salesperson convinces them to sign a contract for an extremely expensive and unnecessary home renovation, using confusing jargon and exaggerated claims, knowing the individual cannot fully grasp the terms or the true cost.

  How it illustrates the term: The young adult's learning difficulties create a state of facility, making them susceptible to misleading sales tactics. The salesperson's use of high-pressure, deceptive language and exploitation of this vulnerability to secure an unfair contract represents circumvention. The contract is clearly not in the young adult's financial best interest.

• Example 3: Taking Advantage of Illness

  A business owner is recovering from a severe stroke that has temporarily impaired their cognitive functions and ability to make sound judgments. During this vulnerable period, their business partner pressures them to sign a new agreement that significantly reduces the owner's share of future profits and increases the partner's, claiming it's "essential for the company's survival" while the owner is unwell.

  How it illustrates the term: The business owner's impaired judgment and cognitive function due to the stroke create a state of facility. The business partner's exploitation of this temporary vulnerability to gain an unfair advantage in profit sharing is circumvention. This action is against the owner's long-term financial interest in the business.