BSA Section 114 — Proof of good faith in transactions where one party is in relation of active confidence

Summary

Where there is a dispute about whether a transaction was carried out in good faith, and one of the parties holds a position of active confidence over the other, the burden of proving that the transaction was in good faith falls on the party who holds that position of active confidence.

Illustration (a): If a client sues their advocate over a sale, and the good faith of that sale is questioned, the advocate must prove the sale was made in good faith.

Illustration (b): If a son who has just come of age sues their father over a sale, and the good faith of that sale is questioned, the father must prove the sale was made in good faith.

Official Text

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

Illustrations.

(a) The good faith of a sale by a client to an advocate is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the advocate.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

Old <-> New Code Mapping

• IEA §111 — Proof of good faith in transactions where one party is in relation of active confidence